Would Prosecuting Trump Be Good Or Bad For American Democracy?

Despite the compelling need to fairly apply the rule of law, criminally prosecuting a popular political figure would pose unprecedented dangers for democracy as well

The multiple criminal investigations swirling around Donald Trump have made this a fraught moment for our democracy.  

Simple invocation of the maxim “no person is above the law” does not adequately resolve the question of whether Trump should be prosecuted. Yes, the rule of law is paramount to democracy; indeed, it may be the very essence of it. But there are other key democratic values at stake that we should be loath to ignore.

Besides strict adherence to the rule of law, democracy also requires trust in the institutions of government, especially those with the power to encroach upon or take away human liberty. Democracy also cannot survive without some level of comity between political parties such that an electoral defeat is not seen as so catastrophic that holding on to power becomes more important than survival of democracy itself. In a healthy democracy, political contests are about choosing leaders based on their vision of the future, not about punishing electoral losers for what they have done in the past. Graceful concessions of electoral defeat and peaceful transitions of power are impossible if the likely aftermath of elections is political retribution by electoral winners via criminal prosecution of electoral losers.

When Barack Obama was reelected in a hotly contested, but civil, general election, absolutely no one would have predicted that we would be needing to debate these fundamental issues just one decade later.  But so many unimaginable things have happened in the past ten years, especially the effort to overturn the results of the 2020 presidential election that culminated in a mass riot on the Capitol, we cannot simply pretend that these are normal times. We can’t presume the norms of our democracy are strong enough to weather any storm as they generally have since the end of the Civil War.

Criminal prosecution of a former president who remains a popular political figure and has expressed a desire to run for office again would be an unprecedented event in American history and will have unprecedented implications for American democracy.

If you think honestly and hard about this issue, it is clear there will be negative consequences no matter what path is followed.

If Trump is not held accountable for egregious violations of the law (again, presuming they indeed can be established in a court of law), it would be a severe blow to the rule of law and the democratic legitimacy.

The January 6 Committee has clearly established that Trump and his cronies tried to illegally reverse the results of the presidential election. It appears that the Justice Department has a strong case that Trump committed serious crimes by bringing national security information to Mar-a-Lago for no legitimate reason, retaining the documents without adequate security, and lying that all such information had been returned to the government. And the Fulton County district attorney is methodically developing a strong case and straightforward case of “soliciting election fraud” or perhaps more serious charges of conspiracy to do so or even racketeering.

If there is impunity for these crimes, it will mean that a president can get away with virtually anything (maybe even shooting someone on 5th Avenue in New York City as Trump himself once predicted). What restraint would there be for Trump, if he regains office in 2025, or any future president to abide by the law? We have seen you cannot count on the Congress to responsibly exercise the power of impeachment. When a president gains control of the government without any ability to ensure that he or she “faithfully executes the law,” especially the laws governing elections, we have slipped from democracy to a form of authoritarianism. American democracy dodged a bullet in 2020, we may not be so fortunate in the future.

Similarly, to have the rule of law means that the law must be applied fairly and impartially regardless of actual or potential anger that a criminal prosecution of a popular public figure gives rise to. Predictions that supporters of the political figure would engage in violence must also be ignored, otherwise mob rule would be “trumping” the rule of law.

(For deeper expositions of these arguments, see NY Times Editorial Board, Donald Trump Is Not Above the Law; Neal Katyal, The Future Criminal Case Against Donald Trump, Chauncey DeVega: Laurence Tribe: If Garland Does Not Prosecute Trump, the Rule of Law Is “Out the Window.”)

That said, I don’t think we can ignore the context in which the Trump criminal investigations are taking place, as many commentators of the center, right-center, and right have been making over the past few weeks (see George Will, David Brooks, Rich Lowry, Ross Douthat and the Wall Street Journal Editorial Board).  These authors all have different nuance, but their basic point is this: 

To understand the potential dangers of the investigations, we must understand the sources of the dangerous divisions in modern American society. The divide is not just between party, race, religion, class, and urban vs. rural as has been the case in many periods of American history. The main driver of today’s divide is different.  It is a meta-narrative claiming that the bi-coastal, multi-racial, educated, urban elite is corrupt and out to destroy all that the non-urban, mostly white, mostly Christian, less educated, Fox-news-watching class hold dear about America. These “anti-elites” love Trump not because he personally reflects their values or because he advances policies that help them – but rather because he gives voice to this narrative. The MAGA base so easily accepted the Stop the Steal fiction because it fits so neatly into the meta-narrative: “yet again the elites are cheating you out of something that is inherently yours – having a president you identify with in power so he can protect you from evil forces that will take away everything from you.”  

Criminal investigations are dangerous, according to the above-listed author’s view, because, like Stop the Steal, they fit the narrative so precisely: “The elite-regime is corruptly abusing its power to put Trump in jail and prevent him from running for president.” Meticulous adherence to legal process and procedure – which the rule-of-law crowd believes legitimizes the law enforcement actions – doesn’t matter to them. What matters is that the prosecutors are all Democrats, and the target is Trump.

The ramifications of pursing these criminal investigations to indictments and ultimately trials of Trump, the commentators fear, are many and serious:  

First, the prosecutions 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 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.

I don’t agree with all these claims, but they cannot be ignored.  The rule of law paradigm is compelling, but we cannot pretend that charging ahead with all the criminal investigations does not pose serious challenges to democratic norms and American national cohesion.  As David Brooks wrote, “It feels as though we’re walking toward some sort of storm and there’s no honorable way to alter our course.”

What should be done?

I’ll provide some analysis and thoughts in my next installment of “Perilous Times.”