Notice And Comment: Should Trump Be Indicted?
What's more dangerous—prosecuting the ex-president, or not prosecuting him?
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Now that the House Select Committee to Investigate the January 6th Attack has finished its first season, and with Congress in recess until September, now is a good time to reflect on next steps. Specifically: should former president Donald Trump be criminally prosecuted?1
It’s a leading conversation topic among pundits. It will be a leading conversation topic at your Labor Day barbecues in a few weeks. And it’s the topic I’ve chosen for this latest installment of Notice and Comment (“N&C”), the feature here at Original Jurisdiction in which I tee up a topic and ask readers to discuss in the comments.
I’m guessing most of you already have formed opinions on whether Trump should be indicted. But in case they might be helpful, here are links to three essays by prominent pundits on both sides of the debate. They’ve appeared at different points over the past few weeks, so the writers had different facts available to them, but their general arguments still apply.
Neal Katyal: “If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.”
Rick Hasen: “What Mr. Trump did in its totality and in many individual instances was criminal. If [Attorney General Merrick] Garland fails to act, it will only embolden Mr. Trump or someone like him to try again if he loses, this time aided by a brainwashed and cowed army of elected and election officials who stand ready to steal the election next time.“
David French: “For law enforcement to indict a former president (and perhaps the frontrunner for the 2024 GOP nomination) would set a grave and potentially dangerous precedent. But there is another precedent that is perhaps more grave and more dangerous—deciding that presidents are held to lower standards of criminal behavior than virtually any other American citizen.”
Jack Goldsmith: “[P]rosecution would further inflame our already blazing partisan acrimony, consume the rest of Mr. Biden’s term, embolden and possibly politically enhance Mr. Trump, and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department ‘independence and integrity’ even if he prosecutes Mr. Trump in the service of those norms.”
Andrew C. McCarthy: “The past eight years of politically fraught investigations—including criminal and national-security probes of Trump and Hillary Clinton, both major-party presidential nominees—should teach us that the intrusion of prosecutors into electoral politics has a corrupting effect on the democratic process and the Justice Department itself.”
Rich Lowry: “Stretching to find a theory for a violation of the law in Trump’s ‘Stop the Steal’ campaign and using it to pursue a dubious prosecution would further discredit the justice system in the eyes of many Americans, represent a breach of the country’s norms, likely fail on its own terms, and perhaps boost Trump politically.”
In the comments, please opine on whether Trump should be prosecuted. If you’re pro-prosecution, it would be helpful to mention what conduct you’d focus on and what you’d charge Trump with, since there are (sadly) multiple possibilities, helpfully summarized in this New York Times article (although note that we’ve learned quite a bit since that article came out, such as more details about the fake-electors plot).
As usual with N&C posts, comments are open to all readers, not just paid subscribers. I look forward to your vigorous (yet civil) debate.
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