The Trump Case Tragedy

There very probably is sufficient evidence to indict the former president of one or more felonies. The question will have to be faced by the DOJ and by at least one state prosecutor whether to do so.

Either decision will be tragic.

A former president of the United States is not a monarch emeritus. That no one is above the law is platitudinous but true and important. If the evidence of serious crime is there, as it appears to be, there is a prima facie duty to prosecute.

It is inevitable that some evils will follow immediately upon the announcement of any indictment. Threats have already been made, indirectly by some of the Republican inner circle, directly and loudly on the cultic fringes. It would be mad to think they are empty threats. The so far, late July, the immediate evils have not gone much beyond heated right wing rhetoric, but there remains some risk when any subsequent indictments, arrests, or court appearances eventuate.

These are not, however, consequences that prosecutors should include in their deliberations, at least not in their deliberation whether or not to prosecute. (It would have to be taken into account in the deliberations as to time, place, manner, and security precautions.) If the threat of violence deters prosecution, then extortion will have won the day and may well become a right-wing staple.

Longer term political calculation, you might well think, would be yet worse than giving into extortion.Taking into account the future of the nation, however, is very different from backing off at gunpoint. The health of democracy, even its survival, would be implicated by United States v. Trump or People of Georgia vs. Trump. The long-term health of democracy is inherently a political matter.

Trump’s conviction of at least one felony is, I suspect, is exactly what the Republican leadership prays for (in secret), at least such of the former leadership as survves. Conviction will turn the albatross around their necks into something truly useful: a martyr.

The martyrdom will be priceless in motivating the base, which can be expected to turn out to vote in 2024 Republican up and down the ticket in record numbers to punish the Democrats on behalf of their demigod. Many Democrats and independents, by contrast, may will feel that the grave danger has passed with Trump’s exclusion from office. Republicans will come out in numbers exceeding even those of 2020; Democrats and independents won’t. If that were not enough for a red wave, there will be official stalwarts of “election integrity,” to make sure that voting is arduous in the wrong sort of neighborhoods or to disqualify “suspect” votes wholesale.

The GOP may will control all three branches, federally and in most of the states. This will not, however, be your traditional Republican party, generally content simply to redistribute wealth upward. The Trumpist base will insist upon acts of revenge against their perceived enemies Democrats, feminists, immigrants, non-whites, LBGTss, Jews, and corporations that cut their campaign contributions to MAGA Republcans. Christian nationalism will be ascendant, and its ascendancy could be long lasting. Gerrymandering and election manipulation have positive feedbacks, rewarding the guilty. Then, there is the real possibility of a constitutional convention, which may well use one state, one vote. Minority right wing governance will then become locked in.

This parade of horribles is not the inevitable result of a Trump prosecution, but all of them are possible, and many of them are frighteningly probable. May prosecutors exercise discretion to decline prosecution to save the country from existential risk?

Trump almost certainly deserves to face prosecution. Although it is unjust to punish beyond what is deserved, criminal justice does not require that offenders be punished to the full measure of their desert. The function of the criminal law is to keep us reasonably safe and society reasonably well ordered. A prosecution is not required by justice if it would lead to a less safe, less well ordered, and more authoritarian society. 

The discretion is part of every prosecutor's job description. It is frequently exercised and rarely if ever for better reason.

It will be a tragedy if Trump is not fully prosecuted, but likely a greater tragedy if he is.