Donald Trump must be prosecuted
Former President Donald Trump may finally be indicted. Finally! The Manhattan district attorney’s office has signaled that charges, related to Trump’s reported hush-money payments to porn star Stormy Daniels, are likely.
But there’s also hand-wringing about whether this is the best case to be the first among those in which Trump is likely to be criminally charged, the strength of this case compared to others and the historic implications of indicting a former president for anything.
And with regard to those implications, the central considerations always seem to be the importance of any precedent set by prosecuting a former president and the broader political significance — what damage it might do to the country. Often left out of that calculus, it seems to me, is the damage Trump has already done and is poised to continue to do.
Prosecution is not the problem; Trump himself is. And any pretense the allegations of his marauding criminality are a sideshow to the political stakes and were, therefore, remedied in 2020 at the ballot box rather than in a jury box, is itself a miscarriage of justice and does incalculable damage.
Last year, around the time the House Jan. 6 committee was holding hearings, Elaine Kamarck, the founding director of the Center for Effective Public Management at the Brookings Institution, wrote: “Prosecuting Trump is not a simple matter of determining whether the evidence is there. It is a question embedded in the larger issue of how to restore and defend American democracy.”
I don’t see it that way. Any case against Trump must hang on the evidence and the principle that justice is blind. The political considerations, including gaming out what might be the ideal sequence of cases, across jurisdictions and by their gravity, only serve to distort the judicial process.
The justice system must be untethered from political implications and consequences, even the possibility of disruptive consequences.
For instance, could an indictment and prosecution of Trump cause consternation and possibly even unrest? Absolutely. Trump has been preparing his followers for his martyrdom for years and evangelizing to them the idea that any sanctioning of him is an attack on them. This transference of feelings of persecution and pain from manufactured victimhood is a classic psychological device of a cult leader.
Last year, on a conservative talk radio show, Trump said that if he were indicted in connection with his alleged mishandling of classified documents, “I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”
Over and over, Trump has goaded his supporters in this direction: whether during the 2016 presidential race, urging rallygoers to “knock the crap out of” people who might disrupt the proceedings, or telling the Proud Boys, during a 2020 debate, to “stand back and stand by.”
On Jan. 6, 2021, he waited and watched the attack on the Capitol for hours, resisting pleas from his own advisers to try to stop it. When Trump finally made a statement, he downplayed the insurrection and reluctantly told the rioters to go home, but not without adding: “We love you. You’re very special.”
Trump is the impresario of incitement. He’ll use any attempt to hold him accountable to agitate and activate his loyalists.
That’s not a reason to avoid vigorously and swiftly pursuing him legally but rather a reason to do it. If we establish a precedent that amassing a significant threat to society is a ward against enforcement of the law, it makes a mockery of the law.
It would reinforce what was already a persistent problem in the criminal justice system: unequal treatment of the rich and powerful, compared to that of the poor and powerless.
Prosecuting Trump won’t break the country. On the contrary, it would be a step toward mending it, a step toward undergirding the flimsy promise of “equal justice under law.”
The eyes of the country are on these cases — the eyes of all those who’ve been badgered for minor violations, who’ve had the book thrown at them for crimes that others either got away with or served no time for. Not only are they watching but so are their loved ones and their communities.
They, too, are America, and further damaging their faith in the country should matter as much as damaging the faith of any other part of our body politic.
To rehabilitate American justice, Trump must be prosecuted.