The hearings of the January 6 Committee have exposed a cascade of apparent criminality on the part of Donald Trump and his cronies. Each hearing has presented evidence in a clear, coherent and compelling fashion. While a principal focus of the Committee may have been the January 6 insurrection, the record has shown a much broader conspiracy to overturn the 2020 election.
The Committee has been highly effective in making its case through the testimony of Trump’s own former associates and supporters. Nevertheless, the testimony with the strongest emotional impact was provided by the mother-daughter team of former Georgia poll workers, Ruby Freeman and Shaye Moss. As they testified, their lives were shattered after Trump singled them out for abuse as they were simply doing their jobs. Predictably—inevitably—Trump’s abuse unleashed vicious attacks from some of his crazed supporters. Such attacks are something to which no American should ever be subjected, much less at the instigation of our country’s president. As observed in Vox, their story “highlighted a serious and ongoing threat to American democracy.”
Even more alarming evidence was presented at the most recent hearing on Thursday. At that session, Trump’s appointees to the senior leadership of the Justice Department, led by former Acting Attorney General Jeffrey Rosen, recounted in chilling detail how they were barely able to stave off Trump’s attempts to corrupt the Department into supporting his bogus election claims. At the heart of Trump’s scheme was a decision to replace Rosen with Jeffrey Clark, an obscure mid-level official who was an eager Trump stooge. Trump was forced to reverse his decision when firmly advised that to carry it out would result in mass resignations from the Department. If Trump had succeeded in making the Department a handmaiden for his plot it would have been yet another potentially fatal blow to our democracy.
Sadly, the hearings have been viewed by only a fraction of the public. And that fraction excludes most of those who would profit most from the education that the hearings have provided. Nevertheless, the hearings have been observed by Attorney General Merrick Garland and they may have a salutary effect in rousing the Department of Justice from its seeming lassitude. One interesting and welcome sign was the report that on Wednesday federal agents had conducted a thorough search of the home of the feckless Jeffrey Clark.
The Committee’s hearings have had the effect, probably intended, of increasing the demand for the criminal prosecution of Trump. But, however appealing and justified that course may be, it is fraught with a variety of difficulties, both legal and political.
One difficulty lies in the various defenses that Trump might raise that would have to be resolved prior to a trial. It seems unlikely that such a trial could occur before 2024, and if Trump or any other Republican were elected president, that would doubtless be the end of the case. If the prosecution had been brought by a special counsel, it might survive, but that is far from certain. The most fundamental obstacle to prosecuting Trump may be that he continues to have support, and in many cases strong support, from as much as 40% of the country. As noted in a previous blog, if Trump is “detached from reality” concerning the 2020 election, so are his supporters.
In a guest essay in the New York Times, Jack Goldsmith discussed some of the complexities of a Trump prosecution that Attorney General Garland would have to confront before proceeding with a prosecution of Trump. After discussing various potential issues, Goldsmith acknowledged that “the rule of law would be vindicated by a Trump conviction.” Nevertheless, he expressed serious reservations as to whether a Trump prosecution would serve the national interest:
And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. * * * *
Along the way, the prosecution would further inflame our already blazing partisan acrimony, consume the rest of Mr. Biden’s term, embolden and possibly politically enhance Mr. Trump and threaten to set off tit-for-tat recriminations across presidential administrations.
As a threshold matter, a determination of whether prosecution of Trump is in the national interest, including its effect on partisan politics is a decision that should be made not by the Attorney General but by President Biden—specifically in the context of deciding whether to grant Trump a pardon. That is how such issues were resolved when President Gerald Ford pardoned Richard Nixon and, while there are differences, it is a compelling precedent for the current situation. Thus, the Attorney General should confine himself to determining whether it is likely that, under the facts and the law, Trump would be convicted. Just as a prosecution should not be undertaken for political reasons, one should not be foreclosed for such reasons.
Whether Biden should pardon Trump is a difficult question. It is considerably more difficult than Ford’s decision to pardon Nixon because Trump’s crimes are far greater and pose a far greater danger to the Republic. I am among those who believe that justice will be served only by Trump’s trial, conviction and incarceration. At the same time, I recognize that Goldsmith has raised legitimate concerns that should not be ignored or dismissed. On balance, it seems to me that Trump’s unique and powerful assault on democracy demands prosecution, however ugly the short term consequences may be.
There is no reason to believe that if Biden pardoned Trump, it would usher in anything resembling an era of good feeling. On the contrary, Trump and his minions would be apt to see a pardon as weakness and a tribute to their political strength, thus encouraging them to continue their march toward authoritarian rule with a sense of invincibility. Conversely, a trial would—unlike the January 6 Committee hearings—be impossible to ignore, and perhaps the evidence would at long last bring reality to many of his followers, lancing the toxic boil of Trumpism.
Finally, a point that Goldsmith did not touch on: whatever decision is made as to Trump, there is no excuse, none, for not proceeding with robust prosecutions of the senior members of Trump’s conspiracy to overturn the election. Perhaps the search of Jeffrey Clark’s home is a sign that such are on the way, but they are long overdue. Let us hope that many more aggressive steps by the Department of Justice will soon be reported.
I was finishing law school in the spring of 1974, and had accepted a job in HUD’s Office of General Counsel, scheduled to start on August 12th, after I’d taken the Bar Exam. Nixon’s resignation on August 9th was one of the happiest days of my life…thrilled with the notion that I wd go to work in the Ford Administration the following Monday, rather than the tainted Nixon Administration. I was in a minority of people my age to applaud Ford’s pardon of Nixon, but I didn’t want to live through more years of headlines @ Nixon’s prosecution (and/or his imagined “persecution”); my attitude was “out-out damn spot.”
There are myriad differences between Nixon & Trump (all in favor of NIxon), but the central difference in this context is that Nixon resigned in the face of certain impeachment when upstanding conservative Republican Senators told him he wdn’t have their support, notwithstanding that he had won in an ACTUAL landslide in 1972. By contrast, Trump not only survived 2 impeachments, even his ACTUAL loss of the 2020 election didn’t stop him from refusing to relinquish the presidency voluntarily. As we now know, Trump not only attempted illegal maneuverings to stay in power, which themselves wd have rocked our constitutional democracy to its core, he was eager to foment physical violence.
Accordingly, while I sometimes wish we cd just dispense Trump with an “out-out-damn-spot” pardon, I don’t think the spot wd ever be rubbed-away. Trump wd never admit to any wrong doing in exchange (or even to having legitimately lost the election), and wd be succeeded if not by himself by a Trump proto type.
My husband (Michael Smith, who commented above) suggests a Special or Independent Counsel, which I think is a good idea…but will inevitably drag-on; I think swift prosecution of high-level co-conspirators might be a good idea too.
But I’m not sure there are any good ideas.
DOUG, PLS KEEP THEM COMING.
Btw, did everyone see the standing-O Liz Cheney got in response to her speech at the Reagan Library? Gave me heart…grasping at straws, etc.
Doug, where could such a trial be safely held? If the Halls of Congress are no longer safe from the predations of the crazed, how could any court be?
P.S. I hope very reader reads Mr. Roger Smith’s entry above,
It sometimes strikes me in a quiet moment that until the 21st Century I presented myself as “a Republican all of my life.” I now find it all but unimaginable.
Still I believe that my standards have changed little in the last 60 or 70 years. That implies I am deceiving myself – or that the current political world is far from anything I could have imagined.
You are not deceiving yourself, and you are not alone. I outlasted you, remaining a Republican until 2020, a history I now acknowledge with some embarrassment. There are a variety of explanations for what happened to the Party (It cannot ALL be blamed on Donald Trump), but none of them are very comforting.
Mr. Eberstadt — we met long ago and only briefly. But I think I know enough to assure you that your “standards have changed little in the past 60 or 70 years.” It is of course what passes today for the once-honorable Republican Party and our nation’s politics that have become unrecognizable. (But then you knew that.) As an eternal optimist, I believe that the extreme nature of today’s GOP will trigger the gyroscope effect once a hallmark of American politics. Or is that also permanently altered?
Isn’t this a bitch? After saying he could get away with murdering a guy in downtown Manhattan, we’re looking at the prospect of him getting off the hook for insurrection against the government (either by pardon or hung jury). By the way, I don’t see any prospect of him confessing to anything.
Hi Doug,
As always, timely, factually, and intellectually presented.
If Trump is prosecuted, and convicted, the possibility of an internal revolution may spin inexorably into a conflict that may create a divide of the citizenry unseen since the Civil War.
This is not to say that Justice should not prevail, but is a warning for preparedness.
Opinions are irrelevant in a court of law.
Donald Rumsfeld, said a long time ago, and was ridiculed……
“ We know what we know, we know what we don’t know, but we don’t know what we don’t know.””
The NYT and the WP had great fun with that.
B
The problem with Rumsfeld’s formulation is that what got us in the most trouble was not what we didn’t know, but what we thought we knew but just wasn’t so.
Dear Mr. Parker,
Knowing your prior service in Republican administrations, I was pleasantly surprised by your forthright endorsement of the indictment of Mr. Trump, presumably followed by his conviction. But I am puzzled by your heading “Prosecute OR pardon.” Why or? Aren’t these two separate decisions? Assuming Trump has actually been indicted by DOJ along strictly legal lines and a full bill of particulars has been presented to a jury of Mr. Trump’s peers (a fascinating concept!) he may then be convicted by 12 persons good and true–or not. Should the likely outcome be a hung jury on these charges, AG Garland could offer Trump his choice between facing a retrial OR accepting a pardon. Should a conviction result, Trump could again be offered a pardon. But any acceptance should ONLY come after a full and frank confession by Trump of his culpability. This way, under a variety of potential outcomes the needs of JUSTICE will have been addressed,
Here is where I believe the Gerald Ford historical parallel is apt. Due to a personal relationship with a former WH intern under Pres. Ford, I had the great privilege of spending an afternoon in their Palm Springs living room with Pres. and Mrs. Ford. Despite warnings NOT to raise such a sensitive subject, I boldly asked the President WHY he hadn’t extracted a full and frank confession from Mr. Nixon PRIOR TO pardoning him. His immediate answer was that, to him, ACCEPTANCE of a pardon constituted such a confession. My equally immediate rejoinder was, “Mr. President, YOU are a gentleman and thus you believe that. Mr. Nixon was nothing of the kind.”
Once the decisions to indict and pardon are properly separated, THEN in my opinion the competing interests of justice, politics and history can be properly addressed.
I strongly concur that only trial, conviction and incarceration of Trump (and certainly all his high-level minions) can properly serve justice. But for Trump, at least, I think it should be pursued by a Special or Independent Counsel (to move it at least one layer away from claims of partisan witchhunt). But I do wonder where any prosecutor can find a jury of 12 who do not already have strong opinions on the matter.
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