Comment: DOJ’s Trump probes should matter most to nation

A conviction for a hush-money payment won’t keep him from running. Being guilty of insurrection could.

By Timothy L. O’Brien / Bloomberg Opinion

Donald Trump took to social media on Saturday to stir up his mob.


A Trump spokesman had to clear up things soon afterward. He said that Trump had no idea about the timing of an arrest, much less on Tuesday. But Trump’s post served its purpose. A number of Republicans, including Kevin McCarthy, Mike Pence, Elise Stefanik and Marjorie Taylor Greene, rushed to his defense. Trump, they said, is a victim.

All of this smacks of the stream of social media posts Trump deployed before the Jan. 6 insurrection in 2021 at the U.S. Capitol; most famously, his invitation to visit Washington: “Be there, will be wild.” It’s also a reminder that once an insurrectionist, always an insurrectionist. Trump, of course, hasn’t learned a thing from all of the arrests, lawsuits and public hearings that have followed the Jan. 6 siege. He revels in the idea that he can burn the house down if voters or law enforcement get in his way.

Trump’s invective also highlights the stakes that are still in play even though he was voted out of office more than two years ago. The former president is mired in a tarpit of civil and criminal investigations and lawsuits, with all but two of them unlikely to keep him from occupying the Oval Office again.

The apparently imminent indictment that is so front of mind for Trump will be handed up by a grand jury convened by Manhattan District Attorney Alvin Bragg. Bragg’s office has been investigating whether Trump and others in his company falsified business records to cover up hush money payments to a woman who said she had a sexual tryst with him.

Is this the most perilous legal challenge facing Trump? Probably not. He clearly fears being handcuffed, fingerprinted and perp-walked before TV cameras and the media, as anyone would. It’s a criminal case, so the threat of winding up behind bars looms. Whether or not that comes to pass is unclear, but it wouldn’t necessarily prevent him from running for president again anyhow.

The only qualifications the Constitution requires for a presidential bid are age, citizenship and residency. Eugene V. Debs and Lyndon H. LaRouche Jr. both ran for president even though they were convicted of crimes. Campaigning from a jail cell may prove awkward for Trump, but in a digital era anything is possible.

New York State Attorney General Letitia James has been prosecuting Trump, his company and his children for possible financial fraud. That’s a civil case, so there’s no possibility of prison time attached to that one. In Georgia, Fulton County District Attorney Fani Willis is conducting a criminal investigation into whether Trump and his allies tried to illegally overturn Georgia’s electoral results after the 2020 presidential election. Will that case land Trump in prison? Again, who knows? If it does, though, it still may not preclude a presidential bid.

The pivotal investigations reside at the Justice Department. Attorney General Merrick Garland has appointed a special counsel to determine whether Trump broke any laws in connection with the Jan. 6 attack and his decision to remove classified documents from the White House and store them at his Florida residence, Mar-a-Lago. If Trump is found guilty in those criminal cases, he may or may not go to prison; but there’s a strong possibility that he’d be forbidden from being president again.

One of the federal statutes that could come into play in the Mar-a-Lago investigation bars anyone who has been found guilty of mishandling government records from holding any federal office. If the Justice Department successfully prosecutes Trump for insurrection related to the Jan. 6 siege, the 14th Amendment of the Constitution gathers force. It bans insurrectionists from holding any public office. There’s a loophole in that one, though: Congress, by a two-thirds vote in each house, can make someone immune from that particular penalty.

Trump’s congressional supporters would undoubtedly try to give Trump that kind of protection, but I wonder how many mainstream Republicans could stomach the MAGA wing flexing that kind of anti-democratic muscle. Nothing should surprise us anymore, I guess, but that would surprise me.

Trump is a threat to democracy, the rule of law, pluralism and public decency. He should never occupy the White House again. On my scorecard, that makes Garland’s prosecution first among equals.

That’s not to say that Bragg, James and Willis aren’t doing exactly what they should be doing. They are not obligated to coordinate their investigations with any others, and they are right to continue pointing out that nobody — especially a former president — is above the law. All three of those prosecutors are Black, and they also went into this knowing that Trump’s predilection for weaponizing racism and partisan politics could eventually land on them.

One of the debates swirling around these lawsuits hinges on the idea that sending Trump to jail would somehow inalterably damage the majesty or utility of the presidency. Therefore, no matter how grotesque his actions, Trump should be given a pass. Maybe, the argument, goes, Trump will then just agree to never run for president again. As if Trump, epic breaker of deals, would ever honor an agreement like that. I’m in the camp that believes that the rule of law is paramount and applies to all, and hand-wringing about the presidency is less important.

Disregard that debate, however, and consider this: If Trump is found guilty of charges stemming from the Justice Department investigations, he could be prevented from holding office again. The debate over imprisoning him becomes secondary. Seeing Trump in an orange jumpsuit may be emotionally satisfying to some, but it’s not the main event. Keeping him out of the White House is.

As Trump went to pains to highlight last weekend, he continues to be an incendiary and dangerous force. Whatever path Bragg’s prosecution follows, it would be well worth staying focused on the larger goal and what the Justice Department chooses to do.

Timothy L. O’Brien is senior executive editor of Bloomberg Opinion. A former editor and reporter for the New York Times, he is author of “TrumpNation: The Art of Being the Donald.”

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