Jonathan Bernstein: Trump should not be immune from prosecution | Voice

NEW YORK — Former President Donald Trump’s legal troubles continue to mount.

It is unclear at this stage whether the Justice Department is seriously considering criminal charges against him for his actions on and around January 6, 2021.

But we do know that the House select committee investigating these events appears to be approaching the mission as if it were prosecutors (which, alas, probably explains why they still haven’t held or even scheduled their long-promised hearings).

This committee can anticipate the drafting of a report that argues in favor of indictments.

And that’s not the only problem Trump finds himself in.

Historian Matt Dallek explains:

Bank and tax fraud charges are being investigated in Manhattan.

In Fulton County, Georgia, a special grand jury is investigating Trump’s interference in the 2020 election.

In a Washington courtroom, U.S. District Judge Amit P. Mehta told a convicted Capitol rioter Jan. 6 that he was a pawn in a scheme by more powerful people, and the legal community asks whether Trump’s apparent incitement to insurrection opened him up. to criminal charges.

The National Archives has asked the Justice Department to open an investigation into Trump’s mishandling of top-secret documents the government recently recovered from his estate in Florida.

Trump still faces lawsuits for obstruction of justice during Robert Mueller’s investigation into Russian interference in the 2016 election (remember that?).

During the 2016 campaign, Trump allegedly orchestrated silent payments to Stormy Daniels (the charges that landed his handler Michael Cohen in jail named Trump the No. 1 individual).

This list is hardly exhaustive and omits the dozen civil lawsuits and civil investigations that Trump faces.

Meanwhile, former US attorney Barbara McQuade released “a model ‘memorandum'” arguing for an indictment based solely on Trump’s attempt to overturn the 2020 election results, in which she argues that the evidence “is sufficient to obtain and sustain convictions for conspiracy to defraud the United States and obstruction of official process” and that Trump should be so charged.

Dallek raises Gerald Ford’s decision to pardon Richard Nixon, who had resigned from the presidency before a virtually certain impeachment, conviction and impeachment, and who was highly likely to be indicted and convicted for his various crimes in the scandal of Watergate.

For Dallek, Ford’s decision was a mistake that weakened the rule of law, since “Nixon never had to pay for his crimes”.

It is true, of course, that Nixon was saved from conviction and jail time.

But surely resigning from office in disgrace, with nearly every member of Congress from his own party ready to vote to impeach and convict, means Nixon did not get away with it.

Yes, Dallek is right that Nixon reverted to a form of respectability over time, but it wasn’t forgiveness that gave him that opportunity.

While it’s likely he would have been convicted, he probably wouldn’t have served more than 18 months than his White House chief of staff, and in any case no more than five years.

Nixon was determined to rehabilitate his image, and while a trial and jail time might have slowed the process, it’s hard to believe that any of those who accepted him as a statesman would have acted differently. he had been a convicted felon instead of merely a pardoned one.

Trump’s situation is very different.

Nixon never really acted particularly contrite.

But he accepted his exile from electoral politics, and while he never entirely gave up spinning Watergate facts and interpretations, almost all of his public re-emergence centered on his political expertise.

He certainly never attempted to be the leader of the Republican Party after August 1974.

He did not try to purge his party of those who had opposed him.

His presidency had been a threat to American democracy, but his post-presidency really was not.

Nixon once said in a post-resignation interview that as president he was essentially above the law.

But Donald Trump is practically a walking billboard of contempt for the rule of law, and his post-presidency has been nothing but an argument that he is above the law.

I’m not a lawyer, so I can’t assess McQuade’s criminal case or the chances of a conviction.

However, I can talk about the constitutional system and the rule of law.

I think Ford’s instinct was sound.

The bar for prosecuting a former president should indeed be raised.

There is an inherent smell, especially when the other party is in power.

But let’s face it.

If the decision to prosecute Trump would necessarily be political, so would any decision not to prosecute him if the law, the evidence, and the circumstances make it an otherwise reasonable course of action.

If we should be uncomfortable prosecuting him, we should feel much more uncomfortable about a former president who actively tried to undermine the Constitution during his tenure and continues to do so now.

Does it stink to sue a former president?

The stench of Trump’s actions from Election Day 2020 through January 6 and up to today is overwhelming.

None of this is enough.

Many of Trump’s misdeeds in office were grounds for legitimate impeachment and removal (and disqualification), but not necessarily violations of the law.

Any case must be strong on its own, regardless of what else Trump has done.

But if so, I think McQuade is absolutely right:

“A sober and lucid assessment of the prosecution must take into account that criminally indicting Trump could have profoundly negative consequences for our country. The only thing worse would be not to charge him.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and politics. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics. © 2022 Bloomberg Opinion.

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