Should the Justice Department indict former President Donald Trump? If prosecutors think they can convict, the answer is absolutely yes.
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Donald Trump and January 6th
The House panel tasked with investigating the events of January 6 has referred to the Department of Justice a recommendation to indict Trump on four counts: “inciting insurrection, conspiracy to defraud the United States, obstruction of an act of Congress… and conspiracy to make a false statement.”
The context of these referrals is the effort undertaken by the former President in the days following the November 2020 election to have the results of that election overturned and to retain his possession of the Presidency. These efforts eventually resulted in a violent attack on the Capitol, instigated directly by the President and monitored by him across the day.
These events have produced an extensive series of criminal investigations of the rioters, along with the House investigation of Trump himself.
President Trump has also found himself in legal jeopardy because of questionable handling of classified documents at the Mar-a-Lago estate in his post-Presidency. Attorney General Merrick Garland has delegated decision-making for the investigation and prosecution of Trump to special counsel Jack Smith, who will need to weigh the evidence from the House investigation alongside the evidence of Trump’s mishandling of classified documents.
Threats of Violence
Some of President Trump’s supporters have threatened violence if he comes into legal jeopardy, opening up questions about whether prosecuting Trump would be worth civil unrest. If President Trump were trying to drift into a quiet retirement, this argument would be appalling, but of course, he’s not; Trump has already announced a 2024 run for the White House.
It would be more than absurd to avoid prosecuting a former President for attempting a violent coup because the government was worried about additional violence. Such a step would simply invite mob or militia rule, where aggressive, violent groups attempt to overturn elections they don’t care for without hardly any concern for retribution. There will be threats of violence, possibly with subtle amplification from President Trump and his family.
These threats may become real violence, a problem itself amplified by the popularity of the former President with the same law enforcement personnel who will be responsible for managing that violence.
But to refrain from prosecution out of fear of such threats would be a pre-emptive surrender to violence.
Integrity of the Electoral and Legal System
In its long history the United States government has never prosecuted a former President for actions he took in office. Some believe that to do so now is both petty and destructive, and that such a prosecution will lead to more attempts to use legal tools to destroy political opponents. That Trump is once again seeking the Presidency raises the stakes, as it creates the precedent for Presidents to unleash the Department of Justice on their domestic foes.
However, If people who undertake complex efforts to overturn a free election in a democracy are not dealt with in some fashion, democracy necessarily suffers. Trump is in an unusual legal position because he launched an autogolpe that resulted in the violent assault of January 6. Unusual problems call for unusual remedies.
Trump attempted a coup.
Failed coups tend to be illegal in democracies, and as consequence Trump should face the full power of the law.
Will He Pay a Price?
Having observed the House committee in its work, I believe that former President Trump has committed crimes against American democracy. He took steps to overthrow a legitimate Presidential election and have himself installed for a second term, an effort that, had it succeeded, would have invited public protest and violence across the country, and which would have endangered America’s long-standing democratic principles.
Should DoJ allow threats of violence to dissuade it from indicting Trump? To do so would invite the destruction of democracy by violent, extra-legal mobs and militias. Should DoJ observe the shadowy precedent that no President has ever been indicted after leaving office? To do so would simply ensure that Trump and his supporters will continue to violate the law. When democracies do not move aggressively to counter violent extremism, they risk normalizing it.
All of that said, much depends on the wisdom and professional insight of the members of the Department of Justice who are tasked with investigating Trump. As we saw with the two impeachments of President Trump, a trial that results in no conviction does little to restore anyone’s faith in democracy.
The Justice Department should consider first and foremost whether it is likely to convict President Trump on the charges that the House has referred and on charges associated with Trump’s handling of classified material. This assessment should be conducted soberly, in light of the relevant law and the facts that have become available.
If prosecutors think that they can convict Trump, then they absolutely should not hesitate to do so.
Author Expertise and Experience: A 19FortyFive Contributing Editor, Dr. Robert Farley has taught security and diplomacy courses at the Patterson School since 2005. He received his BS from the University of Oregon in 1997, and his Ph. D. from the University of Washington in 2004. Dr. Farley is the author of Grounded: The Case for Abolishing the United States Air Force (University Press of Kentucky, 2014), the Battleship Book (Wildside, 2016), Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (University of Chicago, 2020), and most recently Waging War with Gold: National Security and the Finance Domain Across the Ages (Lynne Rienner, 2023). He has contributed extensively to a number of journals and magazines, including the National Interest, the Diplomat: APAC, World Politics Review, and the American Prospect. Dr. Farley is also a founder and senior editor of Lawyers, Guns and Money.