This is not to deny that Trump’s conduct after the November 2020 election was atrocious or that it will forever taint his reputation. But all faults, even the most serious of consequences, are not a crime. Stretching out to find a theory for a violation of the law in Trump’s ‘Stop the Steal’ campaign and using it to pursue a dodgy lawsuit would further discredit the justice system in the eyes of many Americans, represent a violation of the country’s standards , would likely fail on its own terms, and possibly boost Trump politically.
If you think an indictment of the most likely candidate to run against Joe Biden in 2024 by the president’s own Justice Department would be seen as anything but a politicized travesty by about half the country, you haven’t. Pay attention.
Our institutions are unhealthy and ill-equipped to withstand the intense turbulence that would result from the pursuit of the political champion of millions. The case would likely drag on for years, possibly with several appeals to the Supreme Court. It would ensure political and legal melodrama that would keep Trump front and center even if he decided to retire to a quiet life of golf at Mar-a-Lago.
Harvard law professor Jack Goldsmith argues that Garland’s conflict of interest in handling such a politically important case may necessitate the appointment of a special advocate. If the Attorney General goes that route, given the pace at which the special advocates’ investigations are progressing, we could be looking at a 2023 impeachment of Trump when he could very well be a declared presidential candidate. How will it play?
In the communications battle of January 6 and the 2020 election, Trump has steadily lost ground, but an impeachment would allow him to move from obsessing over an imagined injustice against him in the past to fighting against an arguably real injustice against him in the present.
The ongoing and very public lobbying campaign directed against Garland will also increase the sense that he bowed to political pressure.
Then there is what a prosecutor would say about our country. The orderly transfer of power has a number of building blocks. One, of course, is the loser conceding defeat and not trying to reverse the outcome. Another is that the loser does not get harassed legally once removed from office. It’s why we honor the political wisdom of Gerald Ford by pardoning Richard Nixon and why Trump was wrong to toy with the idea of prosecuting Hillary Clinton after 2016.
January 6 was indeed, as many people have pointed out, an event worthy of a banana republic, but so would a lawsuit against a former president.
If you live in a country where the former president is in the dock or in jail, it’s a sign of such a lack of social cohesion or deep corruption that you might want to move elsewhere. The United States should not be eager, for the first time, to adopt this practice.
Of course, it was Trump himself who started us down this path and no one should be above the law. But, again, that doesn’t mean he committed a crime.
Obstruction of congressional proceedings is one of the most discussed possible criminal acts. It requires corrupt intent, which means Trump didn’t believe his own claims and was lying about massive voter fraud.
The Jan. 6 committee made a big deal out of people around Trump, particularly then-Attorney General William Barr, telling him his fraud allegations were false. That doesn’t mean Trump credited those advisers. In fact, he fiercely disputed their analysis.
After Trump has spent his adult life exaggerating, distorting and obfuscating the truth to suit his interests and ego, it is almost impossible to distinguish between his legitimate illusions and his deliberate deceptions. On top of that, he is naturally prone to conspiratorial thinking. No one will be able to establish his mindset for sure, and I guess he could pass a polygraph test by making all of his various fraud allegations, even if they contradict each other.
Then there’s the fact that most of Trump’s allegedly illegal acts were done on the advice of lawyers and, in fact, in the company of lawyers, including the notorious appeal to Georgian Secretary of State Brad Raffensperger.
This call underscores how standards change when the question shifts from whether an act is wrong to whether it is criminal.
From a layman’s perspective, Raffensperger’s call was outrageous and condemnable, a sitting president heavily arming a state official to get the election results he wanted.
From a defense attorney’s perspective, it’s different. Trump keeps talking about various categories of allegedly fraudulent votes, totaling a victory of “at least” 400,000 votes. When he utters his famous line, “I want to find 11,780 votes” — one more than Biden’s margin of victory — the context suggests he’s literally talking about finding them, not manufacturing them, from a large pool of irregular ballots.
The specific requests on the call were made by Trump staff and attorneys and related to information sharing and a meeting to review the Trump team’s fraud allegations in detail.
Near the end of the conversation, a Trump attorney named Kurt Hilbert said four categories of allegedly inappropriate votes totaled 24,149 votes, enough “to alter the results or cast doubt on the outcome.” He says the Trump team believes the numbers are accurate, having asked three or four experts to review them, but they want to review them with the secretary of state’s office. “We would like to sit down with your office,” he said, “and we can do that for the purpose of compromise and just like this phone call, just to deal with this limited category of votes. And if you’re able to establish that our numbers aren’t accurate, then fine.
The call ended with an agreement that Raffensperger’s attorneys would liaise with Trump’s attorneys.
Now, you might say that this interpretation of the appeal misses the forest for the trees and is way too legal, but that’s exactly the kind of careful reading a criminal trial prompts.
Once a political irregularity is accused of being a crime, it enters a realm where questions of law and intent become paramount. And the court is not like the Jan. 6 committee where evidence can be presented without contradiction by any pro-Trump advocate in a lengthy prosecution brief. As a political figure, Trump no longer deserves the benefit of the doubt; as a defendant, he is entitled to it.
In our system, we have a mechanism to punish transgressions which are serious abuses of power, but not crimes. This is called impeachment.
In many ways, as my National Review colleague Andy McCarthy has pointed out, the January 6 committee hearings are late impeachment hearings, which makes up for the fact that the House did not hold extensive hearings ahead of Trump’s second impeachment. The timing was not right. Perhaps Trump would have been impeached and convicted had there been a vote on the night of Jan. 6. It turned out the process was too rushed, at the same time it was too late to address Trump’s conduct while still in office and catch the very brief window of shocked outrage among elected Republicans.
The January 6 committee is now, in effect, seeking to indict Trump for an impenetrable offence.
However, a prosecutor is not the House or the Senate of the United States. It is not the role of the law enforcement system to try to belatedly punish constitutional enormities or presidential dereliction of duty. A party that uses lawsuits as a tool for political accountability or revenge (depending on your perspective) is only inviting retaliation from the other party and an escalating spiral that would not be good for our policy or the law .
Trump’s ultimate jury is made up of Republican voters who are not Trump’s hardcore base, but who are also not Never Trumpers. People who need to be convinced it’s time for him to go vote twice for him, like him, disdain his haters, distrust the mainstream media, and feel deep gratitude that he got rid of Hillary Clinton and appointed three conservative justices to the Supreme Court. Anything that pushes them toward Trump serves his purposes, and anything that detaches them from him diminishes his power.
I thought that the January 6 committee would have no chance of reaching this cohort. Instead, by revisiting the madness of the post-election period and prodding Trump to respond, the committee has seemingly reinforced the sense of Trump fatigue among those voters, at least at the margin. Perhaps an indictment of Trump would have the same effect, but it’s more likely to push Republicans into the fence towards him in reaction to a prosecution they perceive as unfair and abusive.
The January 6 committee hearing is expected to hold its fire.