Will Trump prove that U.S. presidents are above the law?
Letting the former president off the hook poses a bigger constitutional threat than prosecuting him
How many times have you heard it? “No one is above the law.”
Yet that aphorism of American democracy has been a myth when it comes to presidents.
Fortunately, few presidents have shown such a penchant for criminality as Donald Trump. And none have done so to a more heinous end: threatening our very system of government. To stay in office, he worked to overturn a historically free and fair election and to prevent the peaceful transfer of power. Even in failing, Trump undermined democracy; many millions of Americans, Republicans, wrongly believe President Biden stole the 2020 election.
The Justice Department under Atty. Gen. Merrick Garland should take all the time it needs to build a case against Trump for his central role in the insurrection of Jan. 6, 2021, one that is strong enough to persuade a unanimous jury beyond a reasonable doubt — and thus ensure, as Rep. Liz Cheney says, that Trump never gets “anywhere near the Oval Office ever again.”
But unless Justice does charge and prosecute the unrepentant former president, the truth will be clear: One man is above the law.
Garland has repeatedly insisted otherwise, without naming Trump. His exasperation was evident last week when, after his latest reassurance that the law reaches all Americans, a reporter challenged him, “Even a former president?”
“I don’t know how to — maybe I’ll say that again,” came the reply. “No person is above the law in this country. I can’t say it more clearly than that.”
Days later, NBC anchor Lester Holt came at Garland again but asked whether Garland worried that “the indictment of a former president, and perhaps a candidate for president, would arguably tear the country apart.” The attorney general didn’t buckle:
“We pursue justice without fear or favor.
We intend to hold everyone, anyone, who was criminally responsible for events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable.”
Prove it.
Presidents current and former inarguably enjoy a higher bar to prosecution, and not without reason: the national interest.
For sitting presidents, the Justice Department has held since Richard Nixon’s time that criminally indicting an incumbent “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Thus, special counsel Robert S. Mueller III didn’t indict Trump in 2019 despite detailing 10 damning instances suggesting he’d obstructed justice in the investigation of Russia’s interference in the 2016 election.
For former presidents there aren’t constitutional restraints to prosecution, but there are practical, political red f lags, especially for Trump.
Inevitably many Americans — a minority, various polls suggest, but a significant one — will see any Justice Department prosecution of Trump as partisan, especially when the government is headed by the opposite party and by the man who was Trump’s once and perhaps future political rival. Failure to convict could elevate Trump politically, just as he was emboldened after Senate Republicans prevented his conviction in two impeachments. And trying Trump could spark rounds of revenge prosecutions as the parties swap power over time.
Yet the ramifications of not putting Trump in the dock — and, ideally, in an orange jumpsuit — would be even worse. On that, I’m with the two renegade Republicans on the House’s Jan. 6 committee.
Cheney recently warned that letting a president get away with treasonous activities is a “much graver constitutional threat” than prosecuting him. On Monday, Rep. Adam Kinzinger said, “If we just wash this under the rug … there is going to be somebody else, whether it’s Donald Trump in 2024 or somebody else somewhere down the line, that recognizes that was the floor of their behavior, and pushes even more. And we can’t survive that.”
After all the chants of Trump’s MAGAts to “Lock ’er up” and “Hang Mike Pence,” the karmic prospect that it would be Trump who’s actually threatened with jail time, with the rope to figuratively hang him unspooled by testimony from his own inner circle, is especially satisfying.
Seriously, though, the evidence we’re aware of — you know there’s more — argues for charges of fraud, seditious conspiracy, conspiracy to obstruct a government proceeding (Congress’ Jan. 6 session to certify Biden’s victory) or all of the above.
From election night on, Trump has insisted he was defrauded of reelection although top advisors told him otherwise. He pressured Justice Department officials to confirm such fraud despite their denials of it — “Just say the election was corrupt and leave the rest to me and the Republican congressmen,” he said.
He urged Republican officeholders in states Biden won to back bogus pro-Trump slates to the electoral college. He summoned his MAGA army to Washington for Congress’ Jan. 6 session and then, knowing some supporters were armed, urged them to march on the Capitol. For three hours he did nothing to stop the rampage; instead he called Republican senators to goad them to keep trying to block Biden’s election certification.
In 1974, like most Americans, I opposed President Ford’s pardon of Nixon for his Watergate actions and other crimes in office. A quarter century later, however, I approved when the John F. Kennedy Library gave its “Profile in Courage” award to Ford for his unpopular act to help a divided nation put the scandal behind it.
But now I’ve come full circle: Had Nixon been prosecuted for his crimes, we wouldn’t be without a precedent for trying Trump.
Instead we’d have proof that, indeed, no man is above the law.
The attorney general assures us that all those criminally responsible for events surrounding Jan. 6 will be held accountable. But presidents current and former inarguably enjoy a high bar to prosecution.