Pros and cons of prosecuting Donald Trump

The dramatic FBI morning raid on Donald Trump’s Florida home this week has again raised the spectre of the former US president facing prosecution.

The Mar-a-Lago raid, said to be related to claims of unlawful removal and destruction of White House records, is “the latest indication of a sharply intensifying criminal investigation by the US justice department into his affairs”, reported The Guardian. This includes the probe into his business empire, the Trump Organisation, and his influence over the US Capitol riot.

According to the latest PBS NewsHour/NPR/Marist poll, Americans are divided down the middle on whether Trump should face criminal charges for his role in the deadly insurrection on 6 January 2021. Fewer than half, however, think he will actually be prosecuted.

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Trump has denied any wrongdoing, regularly describing investigations into his activities as a “witch-hunt”.

Here are some of the arguments for and against prosecutors pursuing charges against him.

1. Pro: nobody is above the law

“For some, the decision to prosecute is easy; no one is above the law, including Donald Trump”, said Elaine Kamarck on the Washington-based Brookings institute think tank blog.

She said Trump could be prosecuted for any number of offences, including “obstructing an official proceeding” in his efforts to block the Electoral College vote, “conspiracy to defraud the United States” for his various schemes to overturn the 2020 election, and “dereliction of duty” for his refusal to intervene to stop the attack on the Capitol or even treason for “inciting an insurrection”,

According to Politico, nearly 900 people have now been arrested in connection with the 6 January riots, on charges that range from trespassing on restricted grounds to seditious conspiracy. Many argue that as “Instigator-in-Chief” Trump is as culpable, if not more so, as those who actually stormed the Capitol and, therefore, should suffer the same legal fate.

2. Con: making Trump a martyr

Speaking to BBC Radio 4’s Today programme, Dave Aronberg, the state attorney for Palm Beach, the location of Trump’s Mar-a-Lago resort, said he believes the former president will use Monday’s raid “to regain his martyr status because that’s the area he feels most comfortable in, to be a mega martyr”.

He claimed Trump would use it as a way to mobilise his base and take attention away from the governor of Florida, Ron DeSantis, a potential rival for the Republican presidential candidacy. Aronberg said martyr status resulting from a prosecution “could be very useful to [Trump] as many people rally around him during this time”, adding “who needs ideas when you can just run on grievances?”

Prosecuting someone like Trump “who continues to be popular has the potential to make that person into a martyr and to facilitate and to enable – radicalise, even further – the movement they are associated with”, agreed Aziz Huq, a professor and constitutional law scholar at the University of Chicago Law School.

3. Pro: putting evidence first

The decision to prosecute Trump should be based on evidence, not its social ramifications, Jonathan Turley, a conservative law professor at George Washington University School of Law, told Voice of America.

“The key is that you have to have a strong and unassailable case but if one exists, I don't think that it makes any sense to give a president some constructive immunity from the criminal code,” he said.

“Most legal and constitutional experts agree,” said Newsweek, “that given the facts that have come to light about Trump’s role in the attack on the Capitol, and the efforts to overturn the results of the 2020 presidential election, it is now plausible that he will be charged with crimes, tried and convicted.”

4. Con: exacerbating divisions in US

“The longstanding reluctance to prosecute former leaders is based on legitimate concerns about the justice system being used to settle political scores,” said the Boston Globe. With Trump supporters maintaining an almost cult-like loyalty to him, the question of whether he should be prosecuted is “laden with consequences”, said AFP.

Jack Goldsmith, a former assistant attorney general in the George W. Bush administration, wrote in The New York Times that prosecuting Trump “would be a cataclysmic event from which the nation would not soon recover” and “would be seen by many as politicised retribution”.

“To avoid a potential political tit for tat, the Department of Justice and state prosecutors must remain completely apolitical in their handling of Trump’s case,” said the Globe. Norman Eisen, a former ethics advisor in the Obama administration, added that “his crimes should be investigated independently, and the president should stay a thousand miles away.”

5. Pro: warning for future leaders

In The Atlantic, Paul Rosenzweig, who served as senior counsel to Ken Starr during the Whitewater investigation of Bill Clinton in the 1990s, said while the chances that Trump will be convicted of any crime are slim to none, “my guess is that a failure to convict will only embolden him and his followers”.

“Those who say Trump should be prosecuted predict that if he isn’t, the next authoritarian in government will feel empowered,” said Rich Barlow at BU Today, Boston University’s website. That is why some argue that prosecutors need to send a clear message not only to Trump and his supporters but also to any future leader who tries to push the boundaries of presidential authority and accountability.

While Congress should pass new laws to constrain future officeholders, “imposing stricter rules on future presidents, by itself, is clearly insufficient”, said a Boston Globe editorial. “Those presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished”.

6. Con: birth of more conspiracies

Trump’s time in office was dominated by conspiracy theories, ranging from birtherism to QAnon to claims the 2020 election was rigged.

Consider then the possibility that Trump is indeed indicted on charges stemming from Capitol riots but found not guilty, “fuelling partisan anger and conspiracy theories about a ‘deep state’ out to get Trump”, said US News.

Trump did little to dispel these concerns in a bitter statement following Monday’s raid, which he labelled a result of “prosecutorial misconduct, the weaponisation of the Justice System, and an attack by Radical Left Democrats who desperately don’t want me to run for President in 2024”.