A criminal case against an ex-president must be simple, clear, and damning. It must also avoid novel legal theories and any whiff of selective prosecution.
A criminal case against an ex-president must be simple, clear, and damning. It must also avoid novel legal theories and any whiff of selective prosecution.
W ith the FBI search of Mar-a-Lago, Donald Trump’s invocation of his Fifth-Amendment privilege against self-incrimination, and the escalating public demands of the grand-jury investigation in Fulton County, Ga., we are yet again left wondering: Will a former president be charged with a crime? Should he be charged with one?
There are two competing considerations.
On the one hand, it would be unprecedented — and, in many ways, traumatic for the American political system — to put a former president on trial, especially if the charges related to his actions in office and the prosecution were run by his political opponents. Such prosecutions routinely happen in unstable banana republics, and Americans are right to be wary of them.
This is why Gerald Ford, a decent and honorable man with nothing to fear from the law, took the political hit for pardoning Richard Nixon in 1974. (And what a hit it was: It may well have cost Ford the 1976 election.) Ford knew that many of the forms of misconduct of Nixon and his associates (covering up their burglary of the Democratic National Committee headquarters, abusing the powers of the IRS and FBI to audit and wiretap political opponents, etc.) were partisan dirty tricks. Ford also knew that Nixon had his reasons for believing that the Kennedy and Johnson administrations had done similar things to him, and that Kennedy’s dirty tricks had perhaps cost him the 1960 election. Nixon’s resignation and Ford’s pardon broke the cycle of excuses for retaliatory abuses — not permanently, but at least for most of the next decade.
That cycle has not yet begun in earnest here, because neither the Trump administration nor state or local Republican prosecutors or investigators have yet attempted serious retaliation. Hillary Clinton was never seriously threatened with prosecution; Hunter Biden has yet to be charged; FARA, the Logan Act, and counterintelligence powers have not been used as excuses for open-ended probes of Democrats; John Durham’s investigation avoided any pre-election charges in 2020, and has thus far charged only some fairly small fish. An indictment of Trump, however, would create far greater pressure on Republicans to hit back at Democrats with some lawfare of their own.
It is impossible to consider a charge against Trump without the context of Russiagate and the Mueller investigation, and without recalling how the journalistic and media establishments treated Trump’s calls for prosecuting Hillary Clinton. The public knows perfectly well that, under the previous Democratic administration, the machinery of FISA warrants and FBI investigations was powered up on the basis of falsehoods and undisclosed partisan dirty tricks; that the resulting investigation was targeted at Trump throughout the first two years of his presidency, starting even before he took office; that it was accompanied by demands for his impeachment that preceded his inauguration; that it was publicly cited by leading elected Democrats as grounds for restricting Trump’s capacity to exercise the legitimate powers of his elected office, including the power to appoint Supreme Court justices; that the FBI director misled Trump to his face in order to pursue, without his knowledge, an investigation conducted under the authority constitutionally given to him as the president, for which only he and not the FBI could be democratically accountable; and that neither this nor four years of a kitchen-sink approach ever produced a criminal charge against Trump or even the facts that could support one. The closest Mueller came was arguing that Trump committed process crimes resulting from the investigation itself.
By contrast, voters are also quite aware that then-candidate Trump’s “Lock Her Up” chants, as crude as they may have been, were aimed at Mrs. Clinton because she’d mishandled government secrets in her capacity as secretary of state, in violation of a specific federal statute. They know that the loud and hysterical response to the chants by a great many Democrats and media figures was not to offer calm, lawyerly arguments but to denounce the very idea of threatening criminal prosecution of political opponents as a thing that is just not done in America. They also remember well how similar arguments were deployed when Bill Clinton committed perjury under oath and tampered with witnesses in civil litigation, things for which ordinary people get prosecuted. And they know that neither Bill nor Hillary Clinton were ever charged for these crimes.
What’s more, all of the prosecutorial organs now bearing down on Trump — the Justice Department, the New York attorney general’s office, the Fulton County Prosecutor’s Office — are in the hands of elected Democrats, so the responsibility for a decision this momentous can’t be fobbed off on “career prosecutors.” If anything, such a buck-passing is an even worse prospect to contemplate than the alternatives. George Conway’s reference to the FBI “crossing the Rubicon” with the search of Trump’s residence inadvertently invoked the most alarming historical analogy possible: Caesar marching his army into Rome, turning the state’s own security apparatus against the republic. The republic did not survive that episode.
The rule of law is a precious thing, and its duties run both ways: It protects and binds the powerful and the humble, the lawbreaker and the lawman. Rule-of-law norms are imperiled when prominent political figures are hauled up on charges that would never be faced by ordinary citizens. But they are also imperiled by elite impunity, which is what cuts against Trump here: He must not be allowed to walk away from crimes just because he was the president.
Unfortunately, elite impunity has so often protected the Clintons and the organs of official Washington when their abuses of power targeted Trump that the system loses rather than gains legitimacy by stripping Trump and Trump alone of its protection. There is thus a particular need, if Trump is to be charged, to demonstrate for all to see that he is being charged under circumstances in which the system would, without any doubt, charge a similarly situated Democrat — that Trump’s enemies are applying rules they would be happy to see applied to their friends. This is why there has been such an intense response to the FBI’s apparently using Trump’s possession of classified records at Mar-a-Lago as the justification for obtaining a warrant and executing an unannounced search: because we all know that this is not how the system treated Hillary Clinton when she ran sensitive State Department communications through a private server at her house.
Where does that leave us? I submit that Trump could and should be prosecuted — in one of two scenarios.
The first scenario is an indictment that sticks to what Bill Barr has called “meat and potatoes” crimes — crimes that are, and have been, regularly charged against ordinary citizens and/or previous political figures on the basis of similar evidence. If Trump actually shot someone in the middle of Fifth Avenue, everybody would recognize that his status as a former president did not and should not protect him from the legal consequences of his actions. So for a Trump prosecution to vindicate the rule of law, he would have to be charged with a crime that everybody has heard of and knows to be routinely prosecuted, and the evidence of the crime would have to be of the sort that a prosecutor routinely uses in similar cases. That would be a good thing.
Of course, the thing about meat-and-potatoes crimes is, they usually get prosecuted by someone who is investigating a crime, not someone who is investigating a person in search of a crime. The fact that we are, six years into the Trump investigations, still discussing the man despite the fact that he hasn’t been charged of a specific, identified, easily recognizable crime should be some indication of the problem with this entire discussion. If Trump had shot someone in the middle of Fifth Avenue, we’d be talking about prosecuting the shooting, not asking what Trump should be charged with.
The second scenario is an indictment that charges Trump with a crime particular to his situation as a powerful political figure, as opposed to a meat-and-potatoes crime. Such an indictment would have to be backed by unambiguous evidence, and it would have to charge Trump under a law that, as written, was very clearly aimed at the conduct in question. (To use a constitutional analogy, an ordinary citizen cannot violate the 22nd amendment; only a person trying to serve as the president for a third term can do so. But the rule is still a clear one: You do not need to be a lawyer to grasp that it’s against the law to serve three terms as president.)
There are, on the books, crimes specific to election fraud and other political offenses. For example, an investigation begun under the Trump Justice Department, and continued under Biden, has resulted in guilty pleas on the part of a former Democratic congressman and a couple of Philadelphia election judges for conspiracy to commit election fraud. (The ex-congressman bribed the election judges to add phony votes to the count.) That’s a straightforward crime, and I’d be quite happy to see the same rules applied to Republicans in circumstances where the facts warranted it. If anything, the most fertile field for a charge against Trump may yet be a similar theory of scheming to substitute phony electors for those chosen by a state’s voters. But in order to bring such a charge, it must be firmly grounded in some law that was already on the books in 2020 and was plainly aimed at the precise problem of defrauding the voters of a fair and honest vote count.
These considerations matter so much because we live in a democracy. An awful lot of the voting public consists of people who are not especially legally sophisticated. They are not lawyers, and neither are they members of a profession such as journalism or academia whose members feel qualified to lecture lawyers about the law. Most Americans understand the law as something that can be wielded against them, not something that is theirs to command. They might call the cops or a lawyer if they recognize a well-known legal wrong, but otherwise, they are apt to be rightly suspicious of the sorts of creative legal theories that come out of a Lyndon LaRouche pamphlet or the Law and Order writers’ room late in the season.
This is exactly why citizens see the addition of 87,000 new IRS agents as unsettling. There is a popular pro-Trump meme (once retweeted by Trump himself) that reads, “In reality, they’re not after me, they’re after you. I’m just in the way.” That kind of thing resonates with a lot of people. Convincing them that their government means to apply the law in an even-handed and even-tempered way is important if we want our system to avoid a vicious cycle of retributions that destroys the rule of law in the name of saving it.
There is one more issue to contend with here: the fact that Trump is still a live threat to pursue, and maybe even win, the presidency again. It was possible to let go of Nixon because he had resigned and was obviously finished as a political force. The desire to hold Trump accountable legally is driven in part by a sense that the political system has failed to hold him accountable. True, he was defeated at the polls, but his conduct after that should have resulted in the Senate’s convicting him for essentially political rather than legal offenses — offenses committed against American democracy in general and Congress in particular. Republican senators who failed to bite that bullet at the time bear some important responsibility for this mess today.
But indicting Trump on some novel legal theory, or one that requires a highly partisan reading of the evidence, would not solve that problem; it would in fact create new ones. Trump would be helped within the Republican Party by any hint that he was being targeted for selective and creative prosecution. The Biden White House — so deeply unpopular that Biden’s only realistic hope in the midterms and 2024 is to create a binary Trump-or-Biden choice — knows this perfectly well. It would be irresponsible to bring charges just to help dig the president and his party out of their hole.
Moreover, the worst of all possible worlds for the country — if the best for Democrats — would be a criminal charge that remained unresolved through the 2023–24 presidential campaign. That alone is a powerful argument for charging Trump only if the law is clear and the evidence certain. As any lawyer can tell you, the more a case rests on some novel and previously unprecedented theory of fact or law, the more protracted the case is likely to be, because there will be all manner of subsidiary arguments (over discovery, the admissibility of evidence, jury charges, etc.) that the judge will have to decide on first impression without a roadmap. A novel prosecution will also spawn protracted appeals.
So here, finally, is my advice to prosecutors interested in potentially charging Trump: Find a room full of Americans without college degrees, one in which partisan Democrats are scarce. In three minutes or less, lay out your best evidence and explain why what Trump has done is clearly and obviously against the law — obvious not just to lawyers, but to everyone. If the room is convinced, then and only then will you know that the case demands you cross the Rubicon.