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Donald Trump should go to trial even if he loses the election.
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Until a few weeks ago, the predominant concern about prosecuting Donald Trump seemed to be that he would never face trial because if he wins the election, he can abuse his presidential power to stop the cases against him from going forward. He could do that easily with a compliant attorney general, and there is no reason to believe he’d put any other kind in place.
Now, as the Democratic ticket continues to gain momentum, some people have begun to speculate that if Trump loses, people will be less interested in seeing the trials happen and will want to put the whole matter behind the country. I’m reminded of the speculation when the federal cases were first filed that President Biden would or should pardon Donald Trump.
A friend told me last week that he thinks if Trump loses for the second straight time, the public thirst for a January 6 verdict will be slaked. He thinks the Big Lie and the insurrection will feel like semi-ancient history if Trump loses. Trump, he told me, would be a dead letter politically, and he’d likely be ruined.
Some people may feel this way if voters reject Trump again. But in my judgment, it would be a serious mistake for the country if the Justice Department backed off or a future president pardoned Donald Trump. We’ve learned that the price of going along to get along is unacceptable and that it can’t be politics as usual when a president tries to undo the will of the voters or compromises national security and refuses to acknowledge what he has done. Trump is more or less threatening to do it again, in fact. Restoring the rule of law in this country means unequivocally establishing that no one, and certainly not a corrupt ex-president, is above the law.
Trump himself is proving the need for prosecution if he continues on his current path. He’s knee-deep in setting the stage for a repeat of 2020 if he loses again. Trump, facing multiple prosecutions at this point, is almost sure to try and evade justice by reclaiming power—or trying as hard as he can to get there with no disregard for the damage it does to the country.
The Supreme Court’s decision in the presidential immunity case makes the situation even more difficult. The Court has given Trump or any future would-be miscreant president absolute immunity from poorly defined “core” official functions. Knowing that, he can carefully tailor future conduct to stay within the broad bounds of the protection. The time for Donald Trump to face a jury is now. The cases against him should proceed without any further delay. Trump should have to live with the results of the trials, conviction, or acquittal as they may hold, just like any other defendant would.
Trump is not Nixon. He didn't resign after he was caught committing crimes. And yet we’ve seen how the consequences of Nixon’s permitted exit have played out. The question of whether and how a criminal president could be charged should have been resolved in the 1970s. Instead, and despite the firm belief—even from folks like Senate Republican Mitch McConnell—that a president who committed crimes would face prosecution, we are now in a legal realm where that’s not the case; the Supreme Court has said that some men—presidents to be exact—are above the law some of the time. The Special Counsel still has a path forward based on charges and evidence of private conduct or of official acts where the presumption of immunity can be overcome.
The opportunity to restore accountability to the presidency is not one that the country can afford to miss. Otherwise, the country is susceptible to rinse and repeat with a future president, perhaps even Trump himself. Former presidents, when properly charged by a grand jury, must face trial on charges that are presented for trial without endless delay. They must be like any other defendant, or we really do have a king. We have already seen Trump face a jury in a courtroom in New York. It did not undermine the presidency. Instead, it resulted in justice. There is no reason the other cases shouldn’t move forward; in fact, it’s an essential first step in restoring people’s confidence in the courts. Letting Trump off the hook would crumble the integrity of the entire criminal justice system.
If Trump does not face trial, future presidents with a criminal bent would be emboldened. They could reasonably believe they could get away with anything so long as they cloaked their behavior in some semblance of official conduct. Take your attorney general into the meeting where you plan to order SEAL Team Six to assassinate a political rival, and you’ve got immunity. And you can pardon coconspirators on your last day in office. If Nixon had been prosecuted after he left office, these issues would have been resolved long ago, and future presidents would have understood they faced certain consequences for criminal behavior. If Nixon had been prosecuted, we wouldn’t be here. We must not permit that lapse to happen again.
A jury might ultimately convict Trump, or it might not. In our system of justice, we let juries, not judges or kings, decide what the facts are and determine guilt in criminal cases. But the process matters. The Founding Fathers believed that criminal defendants should have their fate decided by a jury of their peers, with all the protections of due process in place. Unless—and it’s most unlikely—Trump pleads guilty, justice demands that Trump too face his day in court. No other defendant could just wave an indictment aside, and he should not be permitted to either.
Of course, if Trump wins, it’s open season on democracy. The Supreme Court has said that a president can do pretty much anything they want to as long as they’re clever about it: fraud, abuse of taxpayer dollars, harming enemies, lining their own pockets. All you have to do is get elected, and it’s yours for the taking.
The pardon of Nixon gave us Trump. We must do everything in our power to make sure history doesn’t repeat.
We’re in this together,
Joyce
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