Refusing to sue Trump is a political act
It is a sacred tenet of democracy that judicial and prosecutorial processes must be independent of political pressure. These decisions should be made as objectively as possible.
So let me say up front: I hope no one in the Department of Justice makes a decision based on this article. But equally, they should not do so based on threats from Republicans or pressure from centrist politicians to “look forward, not back” to avoid political violence, conservative or other backlash. The DOJ should let the law and the facts lead where they lead.
If the facts warrant prosecuting Donald Trump and anyone around him, they should be charged. Pursuing them would not be political. Not pursuing them would be.
Unfortunately, elected Republicans are lob heavy threats against both the DOJ and the Democrats, insisting that prosecuting Trump on January 6 (or anything else) would be considered a political act – and that they would seek revenge. Their anger is particularly directed at the House January 6 Committee, which concluded that there is sufficient evidence to implicate Trump and several of his allies in serious crimes.
The House Committee and DOJ officials should carefully ignore these threats for several reasons.
First and foremost, democracy cannot thrive if crimes go unpunished because their continuation would be interpreted as politics, especially by those responsible’s allies. The result of this practice would be a devastating escalation: the elect would commit bigger and bolder crimes to gain and retain power, knowing that their adversaries can do nothing about it, whether they succeed or fail.
Second, the Republicans themselves prevented normal constitutional accountability mechanisms from applying to Trump. They did it for political reasons ranging from venality to cowardice. When Republicans had the chance to convict Trump for the serious crime of trying to extort Ukrainian President Volodymyr Zelensky — by threatening to take arms away from Ukraine in return for Zelensky blaming his national political opponent, Joe Biden — the GOP refused. Republicans had the chance to convict Trump of the serious crime of leading a coup attempt on January 6, 2021 and bar him from running for president again. They again refused. It is valuable to argue that a congressional investigation of the former president and his advisers is an untoward political act when it was the Republican political act that neutralized the constitutional mechanisms of accountability, namely impeachment.
Third, these Republican threats are laughable. It’s more than slightly amusing to see the party of “Lock her up!” Benghazi chants and endless audiences complain of political prosecution. Trump viewed the Justice Department and Attorney General as his personal lawyers, making countless attempts to use federal law enforcement to support his own ambition.
But there is a deeper question as to why Attorney General Merrick Garland and the DOJ did not prosecute Trump. Nobody in the ministry speaks officially, but there are only two possible answers, neither of which is satisfactory.
He is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but that seems a bit hard to believe.
It’s clear, At first glance proof that Trump obstructed justice in the Robert Mueller investigation. More than 1,000 former prosecutors sign a letter stating that “President Trump’s conduct described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of General Counsel’s policy against indictment of a sitting president, multiple felony charges of obstruction of justice.” The Mueller investigation’s lead prosecutor, Andrew Weissmann wrote convincingly that Trump should be prosecuted for obstruction. Trump and Republicans have claimed the Mueller report for failing to find a conspiracy between Russia and the Trump campaign despite ample circumstantial evidence to the contrary, but that’s largely because Trump obstructed the investigation on multiple fronts. There’s a reason obstruction is a crime: if you successfully obstruct, you can never be convicted.
There is also ample evidence that Trump has committed other crimes, ranging from campaign finance violations to the Hatch Act. offenses to violations of classification law and presidential files law. If Trump is not held accountable, why would a future president obey these or any other laws?
Perhaps prosecutors feel there is not enough evidence to show that Trump explicitly knew he had lost the election. Maybe they think Trump has enough plausible deniability to explicitly send his mob to rampage and threaten Congress that day.
The second possibility is that the Justice Department did not prosecute Trump due to political pressure. Again, this is speculation. But if Garland succumbs to internal or external pressure to avoid indicting Trump for fear of civil strife, or the appearance politically motivated, that would be a grave error – not the prosecutor’s discretion, but the prosecutor’s failure. Allowing the fear of violent reprisals to derail a lawsuit would be a grave injustice.
If the crimes are apparent, then fail prosecuting is a politically motivated act. Democracy cannot work if politicians are free to commit grandiose crimes simply because their political allies might throw a fit if held accountable. Reports that the Manhattan District Attorney has essentially given up on prosecuting Trump underscores how quickly a criminal case can deflate due to a lack of will. One can only hope that Garland doesn’t waver and uses the time he takes to refine his case, without giving up on bringing it up or not.