Former U.S. President Donald Trump has just revealed that he is a target of investigation regarding the events of January 6, 2021. This is another step toward holding Trump accountable for the violence of that day. Once again, it raises the issue of prosecution and even jail time for a former president. Once again, this is new political territory for the country.
Legally, of course, Trump’s prosecution should not carry this much weight. Trump is a citizen like anyone else. He is no longer president, and he is not above the law. If there is probable cause to indict him, he should be so indicted just like anyone else. And Trump, of course, demonstrated a lot of evidence that he engaged in inappropriate behavior after his electoral defeat. His phone calls pressuring state officials to ‘find’ more votes are well-known. His plan to have Vice President Mike Pence delay the certification of Joe Biden’s electoral victory was probably illegal. He also engaged in incitement against the Constitution on January 6.
Trump’s Lawlessness is Forcing the GOP to Embrace It too
A core problem of Trump’s ascendance in the Republican party has always been his personal behavior. Trump’s appeal is not his politics. There are many Republicans who share his beliefs. Indeed, Trump is to the left of Florida Governor Ron DeSantis, his main challenger in the 2024 GOP primary. DeSantis is running on a hard-right cultural program, of which Trump voters almost certainly approve. And DeSantis has also acted on his beliefs more consistently and coherently than Trump. Trump is notoriously lazy.
So, DeSantis has long been the hope for conservatives who want Trump’s politics without Trump’s baggage. But DeSantis is imploding. GOP voters want not just the politics but the performance. They want the Trump Show. Poor DeSantis lacks the charisma and sheer manic energy of Trump. Unless Trump is actually imprisoned – and maybe even then – Trump will almost certainly be the 2024 GOP nominee.
But Trump’s charisma – his huge appeal, bordering on a personality cult – is interwoven with his criminality. Much of Trump’s appeal is his tough-guy disdain for rules and conventions. Trump just does what he wants, restrictions be damned. He mocks sexual assault victims, prisoners of war, and the disabled. He brags about his sex life and his wealth. This coarse transgressiveness thrills his voters. At this year’s CNN town hall with Trump, they hooted and laughed at his gleeful abrasiveness.
The result is that other Republicans – forced to accommodate their voters’ Trumpism – must also accommodate Trump’s regularly reckless behavior. For example, Trump’s obviously unlawful taking of national security secrets to his home produced a wave of awkward GOP defenses from Republicans who knew better but will not say it for fear of Trump’s voters.
Breaking this link between Trumpism and criminality was the promise of DeSantis. He would deliver the policies without the public law-breaking and bad behavior. That this approach is failing so badly speaks poorly of not only DeSantis – who is squandering his window – but of Trump voters who are detaching from healthy behavioral expectations of American politicians.
Donald Trump Probably Won’t Go to Jail
The best way for America to move beyond Trump has always been for him to withdraw from public life, much as former President Richard Nixon did. Like Trump, Nixon was disgraced. He faced investigation and jail time over Watergate. He wisely resigned from the presidency and exited public life. This spared the country a punishing, polarizing impeachment process.
Trump could, and should, do the same. But he will not. He is forcing the country to apply the law strictly to ex-presidents when the country’s inclination is to let ex-presidents off the hook of investigation to avoid ‘criminalizing’ politics. Post-presidential investigations do raise this issue. In South Korea, every former president except the current one has been investigated or imprisoned. This is a problem in Latin America too.
Trump, like Nixon, would benefit from the American desire to avoid this kind of post-presidential politicization. If he had returned the national secrets he took to Mar-a-Lago, the FBI almost certainly would have dropped the case this year. Instead, he held onto them until the Bureau saw no choice but to raid his home. Had he not stirred up an insurrection against U.S. democracy itself on January 6, the Congress probably would have looked the other way on his post-election trouble-making and he would not now be facing such scrutiny.
But Trump’s refusal to bend, even in the face of legitimate legal demands, is what his voters love about him. The cases against him will continue and worsen. And Trump will fight them all, aggravating national polarization rather than stepping back to soothe it.
The silver lining will, hopefully, be a legacy that even presidents are accountable for, deterring future presidents from criminalizing the office as Nixon and Donald Trump did.
Dr. Robert E. Kelly (@Robert_E_Kelly; RobertEdwinKelly.com) is a professor in the Department of Political Science at Pusan National University and 19FortyFive Contributing Editor.
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