All the Options Are Bad

But indicting Trump was a mistake.

I made my career as a federal prosecutor jailing people who broke the law. Not for a moment do I regret it. The defendants I dealt with were all adults. They knew what they were doing. They knew, or in the exercise of anything approaching normal judgment should have known, that their conduct was both wrong and illegal. They earned their punishment and they got it. Too bad. Next time behave better.

Which brings me to Donald Trump. Yes, I’m late in coming. Special Counsel Jack Smith indicted Trump fully a week ago, and since then a zillion column inches have been written about it, including several thoughtful pieces by Paul, here, here and here. Paul went from being on the whole against prosecuting Trump before the indictment became available to favoring the prosecution after he read it.

You know the charges by now. Unlike Alvin Bragg’s frolic in Manhattan, this is serious stuff, and with the weight of the federal government, and not just one New York borough, behind it. It involves Trump’s taking, keeping, and like a delinquent little boy playing keep-away — moving hither and yon in his Florida mansion in order to frustrate a subpoena — government documents, some classified and some not, documents that were not his and to which he had no right after he left office. Some of them contained very sensitive information critical to the military preparedness of the country.

Every person is entitled to the presumption of innocence, but that is a courtroom rule about how the jury must assess the evidence, not a command about what we, as members of the public, must think. It seems clear to me, and from what I can gather to most others, that Trump is guilty of most or possibly all of what he’s charged with, in the lay sense of “guilty” — i.e., that he did what the indictment said he did. It’s notable and depressing in that regard that Trump’s defense team is acting like almost every other defense team that crossed my path: They don’t so much deny that Trump did what he’s alleged to have done, but that something else is amiss in the prosecution: That it’s politically motivated; that there’s a double standard, particularly when you look at Joe or Hunter or Hillary Clinton (or her husband for that matter); that he turned over most of the documents when asked (which is a little like saying the robber didn’t scoop out every teller’s cage); that they weren’t really classified because he declassified them through something like telepathy; and that, classified or not, there is no showing — indeed, there isn’t even an allegation — that a foreign power got ahold of the information or that Trump intended that it would do so.

I spent years listening to similar dodges, and, for purposes of assessing legal liability, dodges is all they are.

This is not to say Smith’s case is free of legal problems. There are questions of attorney-client privilege that were resolved against Trump at earlier stages but whose outcome remains less than clear now. There are questions about how a lay jury is going to be qualified to examine classified and very sensitive evidence. There are questions, although not in my view serious ones, about selective prosecution — a legal doctrine more sober than just shouting “double standards!”, but also one bearing proof requirements I very much doubt Trump will be able to meet.

If the rule of law means anything, it means that the law is not a respecter of persons. That Trump is rich, politically powerful, and wildly popular with a significant segment of the country simply cannot count in deciding whether he should be held legally to account. It’s not much of an exaggeration to say that we fought a Revolution to establish this kind of equality, and that doing everything we can now to keep it at the heart of America’s promise is what our democracy is about.

So, painful as it might be, indicting Trump was the right thing to do, and the nation will just have to go through with Trump’s trial — right?

Wrong, or so I have come to conclude. It’s a conclusion I reach with no great confidence; about 49% of me would reach the opposite conclusion, as Paul has. For example, if Trump took the documents to sell them to a foreign country, that would tip the balance for me. But as things stand now, I fear there is something even more critically important at stake here than equality before the law, and we’re on the threshold of losing it.

What’s the main gripe against Trump, really? It’s not his handling of the material he took from the White House. It’s not even his sleazy gamesmanship with the government’s subpoena. The real gripe against Trump, and the thing for which conspicuously the Special Counsel did not indict him, is his role in egging on the January 6 rioters who sought to impede the counting of the electoral votes and, thus, to sidetrack in one way or another the peaceful transfer of power to Joe Biden. Most of the people I know, liberal or conservative, think that was by far Trump’s most egregious sin against the rule of law.

It is, ironically but precisely, the peaceful transfer of power — which more than anything else is the crown jewel of American democracy — that Trump’s indictment now puts at risk.

Why?

Because the entire predicate of the peaceful transfer of power is that the winning side won’t try to put the losing side in jail (or worse). Any way you slice it, this indictment endangers that predicate as never before since at least the Civil War and perhaps ever. In my view, that is too high a price to pay to hold even a guilty and belligerently unrepentant man to the punishment that, legally, I believe he has earned. But this is where we’re headed, make no mistake about it.

It’s true, as Paul has noted, that punishing a powerful man like Trump might have a bracing effect on future office holders that — hey guys! — you really can wind up in serious trouble for your lawlessness. But I think, given the dumbed-down terrain upon which we find ourselves, that the more likely outcroppings of Trump’s prosecution will be much less wholesome. In fact, they won’t be wholesome at all. They are less likely to spawn prudence than a whetted appetite for revenge, an appetite that is sure further to degrade the rule of law rather than enhance it. The Democrats’ appetite will be whetted by their success in putting the thoroughly despised (and at least nominal) Republican leader in the slammer. Their appetite thus whetted is not about to stop with Trump, as any sensate person must know by now. The Republicans’ appetite for revenge, once they return to power, is too obvious to elaborate: You screwed us and now we’re going to screw you.

All my experience tells me that this is what’s actually going to happen. Even now I can see its beginnings — the Democrats’ salivating glee at every single stage of this prosecution, replete with articles already speculating on what Trump’s sentence will be and what prison he’ll be sent to; and the Republicans’ plans to lay the wood to Biden and his crowd, not because they’ve committed crimes (although they may well have), but because they had their fun and now we’re going to have ours.

If we had more adults in the room, I’d be less fearful. We don’t.

Again: I’m a retired prosecutor. I believe in accountability, and it was decades ago that I became fed up with defendants’ excuses and dodges. I’m convinced that Trump has a dishonest and lawless streak in him generally and, specifically, that he’s very likely guilty as charged of most or all of what’s alleged against him in Jack Smith’s indictment. But I can see all around me that this case is filling with partisan bile the groundsprings from which the rule of law draws its nourishment. Even more important, and far more than Alvin Bragg’s parochial silliness ever did, it puts at risk the civic faith that has enabled our country’s signal contribution to how human beings govern themselves — the peaceful and non-retributive transfer of power.

From the Biden Administration’s decision to pursue this case, I respectfully dissent.