Indicting Trump would be a mistake
If the January 6 committee truly cares about protecting norms, the last thing it should want is for Attorney General Merrick Garland to indict Donald Trump.
If you believe that a prosecution of the most likely candidate to run against Joe Biden in 2024 by the president’s own Justice Department would be considered anything but a politicized travesty by about half of the country, you haven’t been paying attention.
The ongoing, very public lobbying campaign to get Garland to act would also increase the sense that he buckled to political pressure.
January 6 was indeed, as many people have remarked, a banana republic-worthy event, but the same would be true of a prosecution of a former president.
The orderly transfer of power has a number of constituent parts. One, obviously, is the loser conceding defeat and not trying to overturn the result. Another is the loser not getting hounded legally once out of office. This is why we honor the statesmanlike wisdom of Gerald Ford in pardoning Richard Nixon, and why it was wrong for Trump to play with the idea of prosecuting Hillary Clinton after 2016.
One of the most discussed of Trump’s possible indictable offenses is obstruction of a congressional proceeding. This requires corrupt intent, meaning that Trump didn’t believe his own claims and was lying about massive voter fraud.
After Trump has spent his adult life exaggerating, twisting and obscuring the truth to suit his interests and ego, it is almost impossible to distinguish between his legitimate self-delusions and his deliberate deceptions. On top of this, he is naturally prone to conspiratorial thinking. No one is going to be able to establish his state of mind with any certainty, and it’s my guess that he could pass a lie detector test making all his various allegations of fraud, even if they contradict one another.
Then, there’s the matter that most of Trump’s allegedly illegal acts were carried out on the advice of lawyers and, indeed, in the company of lawyers, including the notorious call to Georgia Secretary of State Brad Raffensperger.
Once a political impropriety is charged as a crime, it enters a realm where fine-grained questions of law and intent become paramount. And the court of law isn’t like the January 6 committee where evidence can be presented without contradiction by any pro-Trump advocates in an extended prosecutorial brief. As a figure in the political realm, Trump no longer deserves the benefit of the doubt; as a criminal defendant, he’d be entitled to one.
In our system, we have a mechanism for punishing transgressions that are grave abuses of power, yet not crimes. It is called impeachment. The January 6 committee is now seeking, in effect, to get Trump indicted for an impeachable offense.
A prosecutor is not the U.S. House or Senate, though. It is not the role of the law-enforcement system to try to belatedly dole out punishment for constitutional enormities or presidential dereliction of duty. One side using prosecutions as a tool of political accountability or vengeance (depending on your point of view) only invites retaliation by the other side and an escalatory spiral that wouldn’t be good for our politics or the law.
Trump’s ultimate jury is those Republican voters who aren’t the hard-core Trump base, but aren’t “Never Trumpers,” either. The people who have to be persuaded that it is time for him to go voted for him twice, like him, disdain his enemies, and feel deep gratitude that he dispensed with Hillary Clinton and nominated three conservative Supreme Court justices.
Anything that binds this cohort to Trump serves his purposes, and anything that detaches it from him diminishes his power. An indictment of Trump would likely strike these voters as unfair and abusive and push them toward the former president.
For all these reasons, an indictment of is a woefully misbegotten idea, and Merrick Garland should stand down.
Rich Lowry is on Twitter @RichLowry