Opinion

Trump must be prosecuted

Letting him off before we know the full extent of his crimes would be elite impunity at its worst

Will Donald Trump face any accountability for his apparent crime spree as president? Part of that question will be answered soon, with the Senate trial for Trump's second impeachment. Speaker of the House Nancy Pelosi will reportedly send over the article passed by the House on Monday, and while most Senate Republicans are likely going to vote to acquit based on a fake technicality, there will still be a vote.

The more important question is whether Trump will face ordinary legal liability. There are already calls for President Biden to pardon Trump — most recently from Jonathan Rauch at Lawfare. "If we want Biden's presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm," he argues.

This is an astoundingly terrible argument. Trump's monstrous presidency was in no small part the product of previous elite impunity, and he should absolutely face legal liability as any other citizen would in his place.

As an initial matter, Rauch is extremely cavalier about whether or not we know everything about Trump's lawbreaking. "Trump is nothing if not obvious about his transgressions." he writes. He notes that Trump almost certainly committed obstruction of justice in connection with the Russia investigation, and possibly committed sedition by siccing his mob of followers on the Capitol. But if "he committed crimes that we don't already know about, they are probably not of a new kind or magnitude."

Only somebody who is staggeringly ignorant of the Trump canon could say something like this. Now, it is true that Trump is extremely blatant about much of his (apparent) lawbreaking and violations of the Constitution. But the actual pattern with Trump's life story is that he is constantly doing terrible stuff right out in the open, and then when somebody actually investigates any of it in detail, the truth is much, much worse. That was what happened when The New York Times investigated how he avoided paying almost any tax on his massive inheritance. It's the story of his business failures, how he stiffed his contractors, what he did with his money from The Apprentice, and on and on.

It would be highly unusual for there to not be all kinds of scams and crimes in addition to the ones we already know about. Even if there aren't, it would be nuts to not investigate anyway, just in case! Moreover, Rauch mysteriously does not mention several obvious apparent crimes — blackmailing a foreign politician is illegal, soliciting a bribe is illegal, lying to a bank to get a loan is illegal, and on and on. (Again, it seems Rauch has not been paying much attention to the news.)

Then Rauch complains that Trump would turn any trial into a media circus. "That kind of spectacle would not bring the country together in recognition of Trump's misdeeds. It might instead sow even more division and delegitimation," he writes. Now, this may not even be true. In prior legal situations when Trump faced genuine peril, he has tended to quiet down somewhat and evade questions, because he is a massive coward who usually backs down when confronted with a determined, powerful foe. But more importantly, this argument amounts to saying that a sufficiently rich and powerful person should be able to get away with crimes if they can muster exuberant public support. It can safely be dismissed.

But Rauch's "strongest argument for a pardon" is the most mistaken of all. Here he invokes some classic American exceptionalism to further the cult of elite impunity. "Prosecuting an ex-president is a bridge the country has never crossed," he writes. "The implications of seeing a former commander in chief in the dock are vast, profound, and unknowable." Setting this precedent "might just as easily set a precedent that presidents prosecute their predecessors."

One feels like showering Rauch with a bucket of ice water. Hello, Earth to Lawfare! Trump was impeached a year ago for trying to gin up a fake prosecution of Joe Biden in Ukraine — he was just too daft and incompetent to get away with it. He also, let us recall, sicced a fascist mob armed with flex cuffs, guns, bear spray, and a gallows on the Capitol, and when they were inside chanting "hang Mike Pence!" further stoked their anger at his own vice president while he was mere feet away in hiding.

This fussy handwringing about future presidents possibly abusing their power is peanuts compared to what Trump has already done. The fact is the United States is a corrupt, rickety, unstable semi-democracy, where one party out of two does not recognize the legitimacy of its political opponents. Contrary to Rauch's description of President Ford's pardon of Nixon as a "wise and farsighted decision, one that served the cause of justice better than the prosecutorial process could have done," a large reason we are in that situation is because a whole generation of Republican criminals was allowed to evade legal accountability.

If previous criminal presidents had been seen in the dock, Trump very likely never would have become president in the first place. Rauch says that Trump and Nixon are the only modern presidents to have been "credibly accused of serious crimes while in office," but this is not true at all. George W. Bush openly admitted to ordering torture, along with half his top-level staff, while George H.W. Bush pardoned several of the Iran-Contra criminals when the investigation was closing in on his own role. Many of Trump's top staff were Republican lifers who avoided accountability right alongside their former presidential bosses. One of the people deeply involved in the Iran-Contra pardon decision, for instance, was William Barr, who would go on to serve as Trump's attorney general and attack dog.

If even a quarter of the Times reporting on his pre-presidential life is true, Trump should have been put away on several occasions for about every kind of financial fraud there is. When elites can commit crimes with impunity, a nation tends to develop a case of moral rot. With nothing holding them back, the worst, most shameless, and most unscrupulous people worm their way to the top of society — people like Donald Trump. Allowing him to get away with what he's done will just make it clear to all the other aspiring despotic criminals that achieving high office is a ticket to being immune from prosecution. Lock him up!

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