Opinion | Would a Trump indictment for Jan. 6 be fair? The charges will show it.
Is it fair and just — is it a wise use of prosecutorial power — to bring criminal charges against former president Donald Trump for his efforts to overturn the results of the 2020 election?
The answer to this question will become clearer once the indictment is handed up, as now seems inevitable. And, I suspect, the accumulation of evidence, both that already known and facts newly revealed, will point strongly in the direction of yes.
Still, there is a challenging paradox embedded in the idea of charging Trump for his behavior on Jan. 6, 2021, and the lead-up to that day. His conduct simultaneously involves the most wicked crime — he orchestrated an assault on democracy, literally and metaphorically — and a crime that presents the greatest challenge to fit within the demanding rubric of criminal prosecution.
If Trump shot someone in the middle of Fifth Avenue, most of us would have no problem understanding that to be a criminal offense for which he should be charged and convicted. In the aftermath of the 2020 election, he took aim at our democratic system.
In other words, this is the one we’ve been waiting for, for two-plus years now. It is the real deal — not getting Al Capone for tax evasion but for the true crime of being a gangster. But it also comes with worries — some concocted and inflated for partisan advantage, some serious and deserving of consideration.
Criminal law can be an imperfect tool to punish wrongdoing, especially when it comes to fuzzy, inchoate crimes in the arena of public corruption. Even there, the broad proscriptions of the criminal law — prohibiting conspiracies to defraud the federal government, to obstruct an official proceeding, or deprive voters of their rights — aren’t as self-evidently tailored to the specifics of Trump’s conduct. The precedents aren’t precisely on point, precisely because his behavior is so unprecedented.
There will be space for Trump’s lawyers to argue, for example, that the statute prohibiting obstruction of an official proceeding was meant to apply to tampering with documents, not pressuring Congress not to certify electoral votes.
Should Trump then be allowed to escape responsibility for his most egregious actions, with prosecutors relegated to contenting themselves with Capone-like charges? More fundamentally: Is the criminal justice system the best venue for pursuing justice when it comes to Trump?
Trump’s allies, along with nearly all his rivals for the GOP nomination, have an answer that aligns conveniently with their political interests: No. “He should be held accountable at the ballot box, not at the behest of a federal administrative police state,” said tech executive Vivek Ramaswamy. Former vice president Mike Pence, among the more direct victims of Trump’s behavior, told CNN’s Dana Bash that voters already have a “deep concern” about “unequal treatment of the law” when it comes to Trump, and having “one more indictment against the former president will only contribute to that sense among the American people.”
This is not the right way to think about criminal prosecution. The best place to start is with the opening words of the manual that governs federal prosecutors. “A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances — recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results,” the Principles of Federal Prosecution instruct.
The fundamental interests of society. Nothing less is at stake in deciding whether to indict Trump for his efforts to remain in power. If prosecutors can make that case — if they can fit Trump’s conduct within the necessary elements of various criminal statutes, they are duty bound to do so. Looking away is not an option. There has already been too much of that.
House and Senate Republicans looked away — not just through the course of the Trump presidency, but most fatefully after Trump left office, when they declined to vote for his impeachment and conviction even while knowing, as Senate Minority Leader Mitch McConnell said, “there is no question that President Trump is practically and morally responsible for provoking the events of that day.” Convicting Trump would have served the important function of disabling him from seeking future elective office, but the Senate chose not to take that route. “We have a criminal justice system in this country,” McConnell said then. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
No, they aren’t. Trump already faces federal charges stemming from his post-presidential refusal to turn over classified documents to the National Archives. Those who lament the anticipated “legal flimsiness” of the forthcoming election-related indictment would do well to recall supposed overreach by the Justice Department in choosing to execute the search at Mar-a-Lago. The eventual facts quelled all but the most partisan critics.
The fact of charges being brought in the documents case does not inform the separate matter of whether charges are appropriate for Trump’s election-related conduct as well. Being prosecuted for an armed robbery in one jurisdiction does not excuse you from being indicted on kidnapping charges in another.
And those who complain of a supposed double standard in going after Trump but turning a blind eye to the conduct of Hunter Biden somehow choose to ignore another, more glaring inequity: that more than 1,000 people, incited by Trump, have been charged in the Jan. 6 insurrection. McConnell put it powerfully: “The people who stormed this building believed they were acting on the wishes and instructions of their president.”
And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. Where is the fairness in prosecuting the foot soldiers but not their general?
Bringing charges against Trump for trying to undo the election isn’t piling on. It’s protecting “the fundamental interests of society,” which is another way of saying what prosecutors are supposed to do.