The Justice Department must criminally prosecute Donald Trump. The rule of law requires it
The House committee hearings on the Jan. 6 insurrection have shown that the U.S. Department of Justice should bring criminal charges against former President Donald Trump.
I come to this conclusion reluctantly, having said for a long time that an unprecedented criminal prosecution of a former president would further inflame our already deeply polarized society.
The hearings, however, leave no doubt that Trump committed multiple crimes, including obstructing an official proceeding, a federal felony.
On Jan. 6, 2021, Trump did everything he could to keep Congress from certifying Joe Biden’s election. Indeed, in March, U.S. District Court Judge David Carter wrote in a published opinion that “the court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.”
Conspiracy to defraud the United States is also a federal crime, as is seditious conspiracy. A strong argument can be made that Trump incited the violence that occurred on Jan. 6. Another important revelation of the hearings is that Trump engaged in fraud by raising $100 million for his efforts to stay in the White House and then diverted the money to other uses.
Prosecuting Trump would involve serious risks. It could make him a martyr to some and be condemned as partisan persecution. The trial — and surely there would be a trial — would dominate the news for months, ironically giving Trump the sort of platform and attention he craves. And if he were acquitted, his supporters would trumpet the verdict as vindication.
Despite all of this, U.S. Attorney General Merrick Garland’s Justice Department should criminally prosecute Trump. Criminal law exists partly so that society may express disapproval of conduct it deems unacceptable.
Moreover, criminal prosecution can help document crimes and provide an essential historical record. When Barack Obama took office, I argued that his administration should prosecute those who designed, approved and implemented the torture that occurred during the Bush administration. In an effort to heal political divisions, the Obama administration declined to do so. The decision allowed former Vice President Dick Cheney and others to claim nothing wrong was done.
It’s crucial that what occurred after the 2020 election — including the events of Jan. 6 — not be recast as politics as usual. It was the first attempted coup in American history. It was the first attempted insurrection. The House hearings have thoroughly documented that Trump was its architect and must be held responsible.
There is another, more pragmatic reason why prosecuting Trump is important. Section 3 of the 14th Amendment disqualifies anyone who participates in an insurrection from federal office. It is unclear what must be proven to trigger this provision or who would make the decision. But a criminal conviction of Trump on those grounds could keep him from ever being president again.
Any doubts I had about the wisdom of prosecuting Trump vanished when I read the 12-page diatribe he wrote after the first night of hearings. It was vintage Trump, denying any wrongdoing and declaring that the election had been stolen from him. He maintains this notwithstanding the absence of evidence to support his assertion. Even his daughter Ivanka Trump and former Attorney General William Barr told him there was no basis to believe fraud played any role in the outcome.
I do not minimize the difficulty of prosecuting a former president or of fairly trying one. Nor do I underestimate the risks of doing so. But the central tenet of the rule of law is that no one is above the law, not even the president of the United States.
This story was originally published June 22, 2022 at 5:00 AM.