All the Options Are Bad, Part II

Trump's carefree lawlessness collides with a politicized Justice Department. The results for America will be somewhere between dreadful and catastrophic.

In a post two months ago, I bemoaned the choice the nation confronts between looking the other way at Donald Trump’s breathtaking and probably criminal disregard of law, and holding him to account at the fearsome cost of kissing goodbye to the single most important fact that has made it possible for the United States uniquely to have a peaceful transfer of power — the losing side’s faith that the winning side won’t try to put them in jail.

It was troubling enough then. In the meantime, with two more indictments, it’s gotten worse. How much worse is highlighted in a piece by Jack Goldsmith (not to be confused with Jack Smith), Learned Hand Professor of Law at Harvard. Unlike most of Harvard’s law faculty, Prof. Goldsmith isn’t a leftist. He’s a mainstream thinker, and was at one time a high-ranking lawyer in the Bush Justice Department. He has less than no use for Donald Trump, but is also capable of seeing beyond bile. His piece is titled, “The Prosecution of Trump May Have Terrible Consequences.” Every word of it is worth your time. In this passage in particular, he writes about some things we aren’t thinking about but need to:

It may be satisfying now to see the special counsel Jack Smith indict Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution…reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.

Mr. Smith’s indictment [for misappropriation of classified material and obstruction] outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.

That last line in particular warrants our attention. Trump gained the White House in 2016 by winning narrow contests in a few closely divided states — Arizona, Wisconsin, Pennsylvania and Georgia, to name four. He lost the White House four years later in much the same way, although Biden’s margin in a couple of those states was somewhat wider than Trump’s had been in 2016. Given Biden’s present unpopularity, and the fact that he’s running behind what Hillary Clinton was registering against Trump in the summer of 2015, it’s certainly possible that, if Biden beats Trump next year, it could be in much the same way as 2020, but closer — say, by two or three thousand votes in three or four very close states.

Now let’s say that Trump’s prosecution is ongoing when the election takes place, complete with the nightly news overload of Jack Smith’s witnesses unloading on Trump, and the essentially unending, and ubiquitous, stream of acid commentary about how shocking it all is.

And then three days after his election loss, Trump gets acquitted, either of everything or most things. Or the jury hangs, leaving Trump still presumed innocent.

Is that likely? Hardly. Is it possible? You bet. OJ walked despite the utter obviousness of his guilt. Casey Anthony killed her daughter and got away with it. And if Trump loses an extremely close election under the circumstances I’ve described, it will be undeniable by reasonable people that he was robbed of the White House by a prosecution launched by his opponent’s administration, based on charges a jury did not accept.

Prof. Goldsmith’s name for this — “historic disaster” — will be an understatement. It would amount to a subversion of democracy unlike anything we have seen, a subversion brought to us by the very people who’ve been bellowing for months that hailing Trump into court was essential to — ready now? — “preserve democracy.” Equally bad and more ironic, it will be taken by huge numbers of people as vindicating every wild accusation Trump ever made about how the system is rigged, and everyone but him is either a fool or a crook. It will undermine faith in government in a way nothing else, including Watergate, even approached. Even more, it will undermine faith in the criminal justice system. Every smack dealer, carjacker and child rapist out there will be overjoyed at the suspicion that will now inevitably hover over his prosecution no matter how thoroughly justified.

Think that’s bad? Hold on, it gets worse.

[E]ven if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.

There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

Of course the Biden campaign won’t say a word or have to say a word. Why would it when its alter ego, the MSM, owns every inch of the public square? (Indeed, the near-monopoly on public discourse created by the alliance among Biden’s government, the press, corporate PR, and social media is a topic worth its own post).

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.

We should be clear about perhaps the most prominent, and worrisome, of the “transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate.” It was the forgery by FBI lawyer Kevin Clinesmith of information he inserted into a document submitted ex parte to the FISA court in order to obtain a wiretap warrant on Carter Page. An Obama-appointed judge gave Clinesmith probation and community service, notwithstanding that the federal Sentencing Guidelines called for incarceration.

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.

Or, to be more specific, the deal came apart because the district judge very fortunately cared enough to sniff out that the extent of Hunter’s future immunity from prosecution was put in curiously opaque terms.

These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether his prosecution is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances and thus amplify their impact.

Prof. Goldsmith ends his unhappy essay with an observation I can only echo, “None of these considerations absolve Mr. Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.”