Prosecuting Trump requires complicated calculations. DOJ should take its time.
Since 2016, an uncertain but noticeable number of Americans have called for prosecuting and jailing Donald Trump. Some of them have had it with Attorney General Merrick Garland. He’s useless, they say — a waste of taxpayer dollars. The world saw the 45th president try to overturn an election, and now it’s hearing his former staffers fill in the details. What’s Garland waiting for?
This is a good time to remember that a lot of things look simple if we know nothing about them. Those of us who get our investigative and legal training from television may know more than we ever meant to about serial killers and mitochondrial DNA, but we don’t know how to prosecute a former president. The legal intricacies and potential pitfalls should give pause to armchair experts everywhere.
For example, consider Trump’s exhortations at the Capitol on Jan. 6: “You will have an illegitimate president … and we can’t let that happen … if you don’t fight like hell you’re not going to have a country anymore.” He also encouraged his supporters “to peacefully and patriotically make your voices heard.”
Does that last phrase shield Trump from a charge of incitement, as his legal team claimed during his second impeachment? Or was it, in the context of an hour-long call to arms, mere “pro forma ass-covering,” as commentator David French suggests?
Opinions may vary, but the one that counts — a jury’s — often defies prediction. Therein lies Merrick Garland’s dilemma: he has to see around all the corners. He can’t afford surprises because the country can’t afford a failed prosecution.
If history is a guide, any prosecution will cost us dearly. The Watergate scandal of the 1970s tore the country apart for two years; the pardon that was meant to end it kept the pot boiling for two more. And that was over a president cheating in an election he was going to win anyway.
Trump tried to flip an election he had already lost. Worse, millions of Americans cheered him on. We shouldn’t kid ourselves about what would follow an indictment. The turmoil would make our recent elections look tame by comparison, and it would go on for months. Violence would be inevitable. MAGA Nation would take a conviction as final proof of the Deep State’s betrayal of “real Americans.”
And that’s all before the sentencing phase. Order your Trump crucifix while supplies last.
Some legal experts doubt the Justice Department can win a conviction, if it even tries. Criminal cases are hard to prove, and defendants in political cases often get an extra helping of the presumption of innocence. Regardless of the evidence, one juror with a pro-Trump bias is all it would take to end a trial with a hung jury.
Gulp. A hung jury (or an acquittal) would spare us none of the chaos of the trial phase and leave us with the worst possible result: an emboldened, “exonerated” ex-president ready for Revenge Tour 2024. Plus a fired-up fan base eager to help him.
The risk vs. reward calculations for bringing charges against Trump are complicated at best. Without a conviction, they’re painfully clear. Merrick Garland should take all the time he needs to make a good decision. If he gets it wrong, he won’t get extra credit for punctuality.
Michael Smith is a freelance opinion writer in Georgetown.
This story was originally published July 20, 2022 at 8:43 AM.