It is a sacred tenet of democracy that the judicial and prosecutorial processes must be independent of political pressure. These decisions must be made as objectively as possible.
So let me state up front: I hope no one at the Department of Justice makes any decisions based on this article. But likewise, they shouldn’t make any based on threats from Republicans or pressure from centrist politicians to “look forward and not backward” to avoid political violence, conservative backlash, or whatnot. The DOJ should let law and facts lead where they lead.
If the facts warrant prosecuting Donald Trump and anyone in his circle, they should be charged. Prosecuting them would not be political. Failure to prosecute them would be.
Unfortunately, Republican elected officials are lobbing heavy threats at both the DOJ and Democrats, insisting that prosecuting Trump over January 6 (or anything else) would be seen as a political act—and that they would seek revenge. Their anger is particularly directed toward the House January 6 committee, which concluded that there is adequate evidence to implicate Trump and several of his allies in serious crimes.
The House committee and DOJ officials should studiously ignore these threats for several reasons.
First and foremost, democracy cannot thrive if crimes go unpunished because their prosecution would be interpreted as political, especially by the allies of those held accountable. The result of this practice would be devastating escalation: Elected officials would commit bigger and bolder crimes to win and hold power, knowing that their opponents cannot do anything about it whether they succeed or fail.
Second, Republicans themselves blocked the normal accountability mechanisms under the Constitution from applying to Trump. They did so for political reasons ranging from venality to cowardice. When Republicans had the chance to convict Trump for the high crime of attempting to extort Ukrainian President Volodymyr Zelensky—by threatening to withhold weapons from Ukraine in exchange for Zelensky framing his domestic political opponent, Joe Biden—the GOP refused. Republicans had the chance to convict Trump of the high crime of leading an attempted coup on January 6, 2021, and prevent him from seeking the presidency again. They again refused. It is precious to claim that a congressional investigation of the former president and his advisers is an untoward political act when it was the Republican political act that neutered the constitutional mechanisms of accountability, namely impeachment.
Third, these Republicans threats are laughable. It is more than mildly amusing to see the party of “Lock her up!” chants and endless Benghazi hearings complain about political prosecutions. Trump considered the Department of Justice and the attorney general his personal attorneys, making countless attempts to use federal law enforcement to aid his own ambition.
But there is a deeper question as to why Attorney General Merrick Garland and the DOJ have not prosecuted Trump. No one at the department is talking on the record, but there are only two possible answers—neither of which is satisfactory.
It is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but this seems somewhat difficult to believe.
There is clear, prima facie evidence that Trump obstructed justice in the Robert Mueller investigation. More than 1,000 former prosecutors signed a letter stating that “the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.” The senior Mueller investigation prosecutor Andrew Weissmann wrote convincingly that Trump should be prosecuted for obstruction. Trump and Republicans claimed vindication from the Mueller Report for failing to find a conspiracy between Russia and the Trump campaign despite ample circumstantial evidence to the contrary—but that is largely because Trump obstructed the investigation on multiple fronts. There is a reason that obstruction is a felony: If you successfully obstruct, you can never be convicted.
There is also ample evidence that Trump committed other crimes, ranging from campaign finance violations to Hatch Act violations to violations of classification law and presidential records law. If Trump isn’t held accountable, why would any future president obey these or any other laws?
Perhaps prosecutors feel there is not enough evidence to show that Trump knew explicitly that he had lost the election. Perhaps they feel Trump has enough plausible deniability in terms of explicitly sending his mob to ransack and threaten Congress on that day.
The second possibility is that the Department of Justice hasn’t prosecuted Trump because of political pressure. Again, this is speculation. But if Garland is succumbing to either internal or external pressure to avoid charging Trump out of fears of civil conflict, or the appearance of political motivation, that would be a grave error—not prosecutorial discretion but prosecutorial dereliction. Allowing fears of violent reprisals to derail a prosecution would be a grave injustice.
If the crimes are apparent, then failing to prosecute is a politically motivated act. Democracy cannot function if politicians are free to commit grandiose crimes simply because their political allies might throw a fit if they are held accountable. Reports that the Manhattan district attorney has essentially given up on prosecuting Trump underscores how quickly a criminal case can deflate because of a lack of will. One can only hope that Garland won’t go wobbly and is using the time he’s taking to sharpen his case, not to waver about whether to bring it.