By Jonathan Bernstein / Bloomberg Opinion
Former President Donald Trump’s legal problems continue to multiply.
It’s unclear at this point whether the Department of Justice is seriously considering criminal charges against him for his actions on and surrounding Jan. 6, 2021. But we do know that the House select committee investigating those events seems to be approaching the assignment as if they were prosecutors (which, alas, probably explains why they still haven’t held or even scheduled their long-promised hearings). That committee may anticipate writing a report that makes the case for indictments. And that’s hardly the only trouble Trump is in.
Historian Matt Dallek explains:
Bank and tax fraud charges are under consideration in Manhattan. In Fulton County, Ga., a special grand jury is investigating Trump’s interference in the 2020 election. In a Washington courtroom, U.S. District Judge Amit P. Mehta told a convicted Jan. 6 Capitol rioter that he was a pawn in a scheme by more powerful people, and the legal community is debating whether Trump’s seeming incitement of the insurrection has opened him up to criminal charges. The National Archives requested that the Justice Department open an investigation into Trump’s mishandling of top-secret documents that the government recently retrieved from his Florida estate. Trump still faces legal jeopardy for obstructing justice during Robert Mueller’s probe into Russian interference in the 2016 election (remember that one?). During the 2016 campaign, Trump allegedly orchestrated hush-money payments to Stormy Daniels (the charges that landed his handler Michael Cohen in prison referred to Trump as Individual #1).
This list is hardly exhaustive and omits the dozen-plus civil lawsuits and civil investigations Trump faces.
Meanwhile, former U.S. Attorney Barbara McQuade has published “a model ‘prosecution memo’” making the case for an indictment based just on Trump’s attempt to overturn the results of the 2020 election, in which she argues that the evidence “is sufficient to obtain and sustain convictions of charges for conspiracy to defraud the United States and for obstruction of an official proceeding” and that Trump should be so charged.
Dallek raises the decision by Gerald Ford to pardon Richard Nixon, who had resigned the presidency before virtually certain impeachment, conviction and removal, and who was very likely to be indicted and convicted for his various crimes in the Watergate scandal. For Dallek, Ford’s decision was a mistake that weakened the rule of law, given that “Nixon never had to pay for his crimes.”
It’s true, of course, that Nixon was saved from conviction and a prison sentence. But surely resigning from office in disgrace, with almost every member of Congress from his own party ready to vote to impeach and convict, means that Nixon did not get away with it. Yes, Dallek is correct that Nixon returned to a form of respectability over time, but it wasn’t the pardon that gave him that opportunity.
While it is likely he would have been convicted, he probably would not have served much longer than the 18 months his White House chief of staff served, and at any rate no more than five years. Nixon was determined to rehabilitate his image, and while a trial and prison time might have slowed the process down, it’s hard to believe that any of those who accepted him as a senior statesman would have acted differently had he been a convicted felon instead of just a pardoned one.
The Trump situation is very different. Nixon never really did act particularly contrite. But he accepted his exile from electoral politics, and while he never entirely gave up spinning the facts and interpretations of Watergate, almost all of his public re-emergence was centered on his policy expertise. He certainly never attempted to be the leader of the Republican Party after August 1974. He did not try to purge his party of those who had opposed him.
His presidency had been a threat to U.S. democracy, but his post-presidency really wasn’t. Nixon did once famously say in a post-resignation interview that as president he was essentially above the law. But Donald Trump is practically a walking billboard of contempt for the rule of law, and his post-presidency has been nothing but an argument that he is above the law.
I’m not a lawyer, so I cannot assess the criminal case McQuade makes or the chances of conviction. I can, however, speak about the constitutional system and the rule of law. I think Ford’s instinct was a healthy one. The bar for prosecuting a former president should be a high one indeed. There’s an odor inherent in it, especially when the other party is in office. It should give us pause.
But let’s not kid ourselves. If the decision to prosecute Trump would be necessarily political, so would any decision not to prosecute him if the law and evidence and circumstances make it an otherwise reasonable course of action. If we should be uncomfortable about prosecuting him, we should feel far more uncomfortable about a former president who actively attempted to undermine the Constitution while in office and continues to do so now. If it stinks to prosecute a former president, the stench from Trump’s actions from Election Day 2020 through Jan. 6 and right up to the present day is overwhelming.
None of that is sufficient. A lot of Trump’s misdeeds in office were grounds for legitimate impeachment and removal (and disqualification), but not necessarily violations of law. Any case has to be solid on its own, regardless of what else Trump has done. But if it is, I think McQuade is exactly correct: “A sober and clear-eyed assessment of prosecution must consider that charging Trump criminally could have profoundly negative consequences for our country. The only thing worse would be not charging him.”
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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