To Indict or Not to Indict Donald Trump

 

To Indict or Not to Indict Donald Trump

August 29, 2022

The United States Department of Justice, the Prosecuting Attorney in Atlanta, Georgia, and the United States Congress are all investigating former president Donald J. Trump for violations of numerous laws from the election law of the state of Georgia to seditious conspiracy to overthrow the constitution of the United States and the system of government it creates. As of this writing no governmental entity with the authority to do so has indicted Trump for anything, and of course he denies having done anything wrong. It appears to this author, and to a great many informed observers and commentators, that there is more than enough evidence to indict Trump at least for violation of Presidential Records Act. It is undeniable that he took documents he was not entitled to take from the White House to his residence/resort Mar-a-Lago in Florida. For purposes of this analysis I will assume that the Department of Justice has concluded or will conclude that it has sufficient evidence to justify indicting Trump for violation of that law. In a typical legal case there would be no problem with the DOJ indicting the alleged perpetrator.

This however is not a typical legal case. The person the government could indict is a former president of the United States. No former president has ever been indicted for any criminal act. Though I find it impossible to understand how this can be true, former president Trump still has millions of supporters among the American people. Some of those supporters are extremists who are prone to resort to violence when they don’t get their way through peaceful, legal means. We saw them do that on January 6, 2021. Senator Lindsey Graham, a rabid and irrational supporter of Donald Trump, has said that there will be violence in the streets if Trump is indicted. We cannot dismiss the risk of such violence.

The DOJ, therefore, is faced with a decision no prosecutor has ever faced before: Should it issue a criminal indictment against a former president of the United States or not? The Department is faced with a balancing act between the adequacy of the evidence to indict former president Trump on one hand and both the unprecedented nature of an indictment of a former president and the likely vociferous and possibly violent reaction of some of his supporters to an indictment on the other. As much as I would like to see Donald Trump in handcuffs and prison garb, and as much as I believe that that is exactly what he deserves, I nonetheless acknowledge that this is a difficult decision for the DOJ to make. I want here briefly to examine the factors on both sides of the issue involved in federal prosecutors making that decision and to state how I would answer the question of whether or not to indict Trump.

What factors do we find that support indicting former president Trump? First, of course, there is the truth that the facts of the matter fully justify the issuance of an indictment. Beyond that is the fact that the United States is supposed to be a country under the rule of law. It is and must be a foundational principle of the legal and constitutional order in this country that no one is above the law. The law applies equally to everyone in this country. It must apply equally to everyone, or the rule of law becomes a fiction with no actual affect on how this country is governed and administered. The “no one is above the law” here must include the president. Under the rule of law, anyone who violates the law is accountable for that violation. No one can be exempt from that accountability. Moreover, though the law must treat all people equally, a president avoiding prosecution for a crime the president appears to have committed would set a particularly harmful precedent. Not indicting former president Trump would tell all future presidents that they could violate the law with impunity. Not indicting Trump would make the claim that this is a country under the rule of law a joke.

On the other hand, as I’ve already said, no former president has ever been indicted for anything. Richard Nixon might have been indicted for crimes he may have committed in the scandal we call Watergate, but President Ford gave him a full pardon for any such crimes. No one had to decide whether or not to indict Nixon. A president or former president of the United States is not just another American citizen. At least, most Americans don’t think of such a person as just another American citizen. The DOJ indicting Trump would be a huge news story. Many of his supporters would believe the lie Trump and others would tell them that the indictment was political not legal, that it was only evidence that leftist prosecutors in the DOJ were out to get Trump not because he did anything wrong but because they hate him. We also know from what happened on January 6, 2021, that there is a substantial risk of violence if Trump is indicted. There is no way to know how widespread that violence would be. We cannot however dismiss the possibility that it would be extensive.

So how should prosecutors resolve the issue of whether or not to indict former president Trump? I’m glad I don’t have to make that decision. Whether or not to indict an accused criminal is a decision prosecutors make all across the country every day at both the federal and state levels. Prosecutors know how to make that decision. As I understand it, the DOJ has written policies about how attorneys are to go about making that decision. The standard for issuing an indictment, again as I understand it, comes down to whether or not it appears that there is admissible evidence sufficient to prove a defendant’s guilt beyond a reasonable doubt. I believe (or at least assume) that, absent any other considerations, the decision would be to indict Trump.

I believe that the DOJ should indict Trump despite the risk of a vehement and perhaps violent reaction by Trump’s more rabid supporters. A democracy under the rule of law cannot let a threat of violence stop it from holding everyone to the same standard of legal accountability. The law, perhaps especially the criminal law, must apply equally to everyone. That, it seems to me, is the decisive consideration here. We cannot let violent extremists stop the objective application of the law to everyone in this country. Yes, law enforcement will have to be on high alert to counter any resort to violence by people upset about the indictment. Yes, there may be casualties, as unfortunate as that would be. We must take that risk. Our commitment to democracy and the rule of law requires nothing less.