Democracy is Best Served by Not Prosecuting Trump

Indictments would distort the political process, which is the best way to purge the evils of Trumpism

I am sorry to spill more ink on Donald Trump’s future when so many more important things are happening in the world like competing offensives in the war in Ukraine, a dangerous deterioration in US/China relations, and a horrific humanitarian disaster in Turkey and Syria. 

But we are about one year from the GOP Iowa presidential caucus and Trump remains the leading candidate for president among GOP primary voters in at least recent one poll – so Trump’s future is important too. I also promised in a prior column to weigh in on whether it is wise to prosecute Trump. Various criminal investigations are coming to a head – so it feels like now is the time to think about whether it is in the national interest for prosecutors to go forward with criminal indictments of the 45^th president. And just this week, newly minted NY Times columnist David French wrote a thought provoking piece on this very issue.  

French is an excellent lawyer, and his article views this issue from a legalistic perspective. He begins with the correct and uncontroversial principle that the rule of law demands that if Trump has broken the law and his actions would justify an indictment of any other member of the public, then Trump too should be indicted. According to French, a prosecutor should not consider the fact that Trump is a former president, that he is currently a leading candidate for president again, that some supporters might turn to violence if he is indicted, or any other extraneous factor except the facts and the law.  He also notes that prosecutors are duty-bound to apply the “rule of lenity” to Trump, as they should for all criminal suspects. This rule requires that the criminal laws not be stretched or extended beyond their plain meaning. Application of the rule of lenity to the Trump investigations, French argues, should lead Manhattan prosecutors to decline to indict Trump with respect to the Stormy Daniels hush money payments, which relies on a “largely untested legal theory.”  This principle, however, would not preclude an indictment by the Fulton County district attorney, because Georgia law clearly prohibits both soliciting and conspiring to commit election fraud, and Trump’s taped conversation with Georgia Secretary of State Brad Raffensperger appears to be clear evidence that Trump committed these unambiguously defined crimes.

Other possible indictments could come from federal special prosecutor Jack Smith in connection with the investigation of Trump’s involvement with the January 6 riot and Trump’s handling of classified documents after the expiration of his presidency. 

French short-circuits any discussion of whether criminal prosecutions of Trump would be in the national interest, claiming such decisions are inherently political, and thus beyond the purview of state or federal law enforcement officials. French notes that if prosecuting Trump is against the national interest, then it is up to President Biden to pardon him (as Ford did for Nixon). But French argues that Biden should not do so, because, after impeachment failed, “the criminal justice system is one of the last lines of defense against this malignant man and his malignant mob.”

I agree with French that normal prosecutorial standards must be applied to Trump.

I also agree that the new Stormy Daniels hush money prosecution is bogus. Last year, the newly elected Manhattan DA failed to pursue a prosecution against Trump that directly implicated New York’s interests in preventing real estate and tax fraud. Facing criticism from the public and a former member of his office for being weak-kneed, the DA reopened the hush money incident, even though it had been litigated five years ago by the federal government as a campaign finance case. Now the DA is claiming Trump falsified business records relating to the exact same payments in 2016 – a low level felony. This one fails the smell test. 

Whether pursuing any of the other, far more legitimate, prosecutions is good for America requires more analysis than French provides.

In my prior column (written primarily in response to the FBI raid on Mar-a-Lago), I listed six reasons why prosecuting Trump could be detrimental:

First, the prosecutions would fuel the populist narrative, enflame the divide in American society, and weaken trust in our law enforcement institutions – all to the detriment of democracy.

Second, by giving Trump the opportunity to characterize himself as the victim of political persecution, the investigations have politically strengthened him just as his star seemed to be waning.

Third, the prosecutions are violating the democratic norm that a political victor should not use the power of government to punish the defeated party (especially a defeated political figure that remains a potential electoral rival).

Fourth, the criminal offenses that are being investigated are either insufficiently substantial (technical rules about storage of documents) or so inherently political (trying to influence the electoral count) that the use of the criminal law against a potential future presidential candidate is unjustified.

Fifth, the law is not being applied fairly since Clinton was not prosecuted [for her handling of classified emails] and the FBI demonstrated bias against Trump during the Russia election interference investigation.

And finally, the investigations and potential prosecutions will escalate the gravest threat to American democracy on the horizon – the possibility that Trump becomes president again.

Some of these concerns have been overcome by the development of evidence over the past six months. And some of them simply call for fair application of the rule of law. Yet others are even more compelling now than they were six months ago.

To my mind, the damage that could be caused to American democracy by prosecuting Trump outweighs the benefits of holding Trump accountable for his actions and demonstrating that no person is above the law. This conclusion is deeply influenced by my overarching belief that the threat that both Trump and Trumpism pose to American democracy needs to be defeated at the ballot box through a political process, not through the unrepresentative and legalistic process of investigation, indictment, and trial by federal and state prosecutors.  

This is already beginning to happen. The 2020 presidential election was a very close call, but Trump lost. In the 2022 midterms, voters rejected many of Trump’s ideological soulmates in key elections in Pennsylvania, Georgia, and Arizona. What happens in the 2024 presidential election may well slay the beast.

Criminal indictments against Trump, however, would almost certainly distort our politics. 

The 2024 presidential primaries are shaping up to be a potentially cathartic opportunity for the GOP. Many in the party believe that Trump needs to be replaced as the standard bearer. At some point, the candidates opposing Trump, including Ron DeSantis, are going to need to explain to the GOP base voters why Trump should be abandoned. This debate is not going to be about the niceties of policy. Rather, the candidates are going to have to try to convince voters that Trump’s self-absorption, authoritarian tendencies, serial dishonesty, and rank bigotry make him unfit for the presidency (or at least incapable of beating Joe Biden). If one of them can wrest the nomination from Trump, the cult-of-personality fever under which the GOP has been suffering since Trump descended the golden escalator in 2015 may be broken.

Defeating Trump will not magically repair all the problems with the modern GOP, but it would help. Having a GOP presidential candidate that does not openly undermine faith in American elections and sees Russia – not NATO – as a threat to American values would be a big improvement over 2016 and 2020. 

If Trump is indicted, however, this catharsis may never have the chance to get started. No one is better at playing the victim than Trump. Indictments will play right into his wheelhouse because he will be able to point to his favorite villains trying to bring him down: Democrats from the urban strongholds of Washington, D.C., New York, and Atlanta (which is also Trump code for Black people). These indictments would make it virtually impossible for the GOP presidential candidates to level any criticism against Trump, because he will quickly be able to characterize his opponents as siding with the Democrats (the most potent attack possible to the GOP primary electorate). Trump got a 10-point boost over DeSantis among the GOP faithful after the Mar-a-Lago raid. An indictment would be an order of magnitude worse. Trump could ride the outrage train of being hauled before an all-Democrat jury in Atlanta all the way to the GOP nomination.

Criminal prosecutions would continue to distort our politics no matter what happens in the nomination process. 

If Trump loses in the primary, the GOP would face a possible schism between mainstream Republicans that nominated a non-Trump candidate and the MAGA base. For that GOP nominee, indictments would be a gift horse on a silver platter. By promising to pardon Trump if he or she wins the nomination, the nominee could easily heal the rift with the MAGA base that the primary defeat of Trump had caused.

If, on the other hand, Trump wins the GOP nomination, the indictments will do no favor for the almost certain Democratic candidate Joe Biden during the general election. Trump’s inherent weakness is that a chunk of reliable GOP voters has grown disgusted with his narcissism and grotesque conduct. But these voters – who would be otherwise inclined to support Biden over Trump a second time – might react unfavorably to the inherent unfairness of a Democratic administration using the police power to punish an electoral opponent for political advantage.  Multiple federal indictments and prosecutions in Atlanta and New York would certainly be seen by these voters as piling on. With low unemployment, Russia on the run in Ukraine, infrastructure being built in every American city, and Roe v. Wade’s reversal still fresh on the electorate’s mind, do Democrats really want to litigate the 2024 election over whether Trump’s speech at the Ellipse on January 6 was constitutionally protected free speech or a criminal conspiracy to overturn an election?

So, what should be done if the fair application of the rule of law would lead to an indictment of Trump but the national interest in reducing the threat Trump poses to American democracy would clearly be served by not prosecuting him?

The options are not great, but here are two possibilities:

One option is that the special prosecutor could indict Trump this year, and then Biden could pardon him. This would end the federal prosecutions. Brian Kemp might be inclined to pardon Trump in Georgia too. After that, I think the Manhattan DA finds other things to do. Ironically, a Biden pardon could actually help Trump’s primary opponents by making Trump look weak and willing to accept aid from the man who defeated him. 

But the indictments would unfairly put Biden – also a likely presidential candidate – in a lose/lose situation. A pardon would be exceptionally unpopular with the Democratic base Biden would need to get to the polls in 2024. And no matter what Biden does – pardon or refuse to pardon – he will be accused of playing politics. The indictments would shift the locus of the election away from a substantive discussion of America’s future to the personal travails of Donald Trump, exactly what America doesn’t need.

The far better option would be for prosecutors to bring cases against those who enabled Trump to break the law as part of his various conspiracies but decline for now to indict Trump himself. This course of action would be justified as a prosecutorial strategy because these cases might reveal more evidence that could ultimately be used against Trump later. Indictments of the other conspirators might also pressure witnesses to flip against Trump. These cases would provide accountability for episodes like the false-electors scam, the violence directed at the Capitol on January 6, the pressure campaign against state election officials, and the refusal to return classified documents to the National Archives, but would not enable Trump to claim he was being victimized by the Democratic establishment. I don’t know if there would be statute of limitations problems if prosecutions were delayed, but it is certainly not a violation of the rule of law to for a prosecutor to wait for additional evidence before deciding whether to indict every member of a conspiracy. 

David French is right – Trump is a malignant man.

But the impact of his malignancy on America is beginning to fade and might soon be in remission. If there is a good way to honor the rule of law while not fueling Trump’s grievance-based style of politics, that would be the best way forward for the country.