The pros and cons of accusing Trump of a crime | The report


Imagine, as many critics of Donald Trump do, that the former president ends up decked in all orange, successfully prosecuted, and dragged to jail in an unprecedented incarceration more commonly associated with third world nations or undemocratic states.

Or consider the possibility that Trump is actually indicted on charges emanating from the House Jan. 6 committee and the Justice Department, but found not guilty, fueling partisan anger and conspiracy theories about a ‘deep state’ to get Trump.

Or think of the possibility that authorities will refuse to prosecute Trump, leaving many Americans wondering what the investigations and hearings were for — and raising questions abroad about whether the United States is serious about standards of prosecution. responsibility and justice demanded of other countries.

As the Jan. 6 committee wraps up its first round of searing hearings, it remains unclear what will happen to the man who committee members describe as the mastermind of an effort to overturn a democratic election and undermine the very form of government of the nation.

But any option will be painful, analysts agree, and unlikely to bring the kind of unity desperately needed after such a violent period of division in American history.

“On the one hand, prosecuting someone (like Trump) who continues to be popular has the potential to make that person a martyr and to facilitate and enable — to further radicalize — the movement with which he is associated,” says Aziz Huq. , a professor and scholar of constitutional law at the University of Chicago Law School.

Editorial cartoons about Donald Trump

On the other hand, he says, failing to hold people at the highest levels accountable for Jan. 6 could delegitimize the very democratic institutions that were attacked that day.

“The question to ask is whether criminal prosecutions are moving us in the right direction,” adds Huq, who is the former director of the Freedom and National Security Project at the Brennan Center for Justice. “I’m pretty sure criminal prosecution wouldn’t be high on my list for doing that.”

Attacking the once most powerful man in the world as if he were a common criminal could make matters worse, says Paul Rosenzweig, director of Red Branch consulting who was Ken Starr’s lead attorney during the trial. Whitewater investigation of former President Bill Clinton.

“Years of experience pursuing tense political cases (and defending other people) have taught me that the criminal law is a blunt tool for obtaining justice and a poor means of resolving political problems,” he said. said Rosenzweig. written in The Atlantic. “In my opinion, the chances of Trump being convicted of a crime are slim to none. And while I’m no political analyst, I suspect a failure to convict him will only embolden him. and his supporters.”

But many argue that those circumstances don’t apply here, since the crimes described in relation to Trump go to the country’s democratic infrastructure itself.

“Criminally, I think it’s very important that he be charged, because it’s unprecedented,” said Barbara Comstock, a former Republican congresswoman and Justice Department spokeswoman. George W. Bush administration. The indictment of an incumbent president is a shattering precedent, but “it exceeded all standards,” Comstock said.

“If we want to uphold the rule of law, we have to show that no one is above prosecution.”

“I don’t think it would make him a martyr” if charged, Comstock adds. “I think that will make him a more pathetic character.”

Lara Brown, director of the Graduate School of Public Management at George Washington University, says that’s the principle that matters and will endure as the test of American democracy.

“If we want to uphold the rule of law, we have to show that no one is above prosecution. That doesn’t mean they will be convicted. But I absolutely believe that the government has to prove that this kind of electoral conspiracy is not OK, because elections are the foundation of our democracy with the rule of law.”

Polls show a majority of Americans want Trump prosecuted, and that number has risen since the House committee on Jan. 6 began hearings. Nearly 6 in 10 Americans think Trump should face lawsuits, a ABC/Ipsos a poll published earlier this week found. This compares to a Washington Post/ABC poll from January 2021 – conducted just after the insurgency – which found 54% of Americans think Trump should be indicted.

Americans are not used to seeing their leaders perpetrated in court, let alone incarcerated. A list of world leaders sentenced to prison includes those from China, Sudan, Iraq and countries with tumultuous domestic political environments. Among close US allies, former French President Nicolas Sarkozy has twice been convicted of campaign finance violations. He appealed the first sentence and was allowed to serve the second under house arrest.
When former President Richard Nixon resigned after Watergate, his successor, President Gerald Ford, pardoned Nixon, thus sparing him any prosecution. So-Sen. Massachusetts Democrat Edward M. Kennedy excoriated Ford for this at the time. But Kennedy later praised Ford at the former president’s Profile in Courage awards ceremony, saying Ford had helped heal the nation after a painful time.

Indicting Trump, experts note, could be deeply troubling for Americans, who largely see their country as an example for the rest of the world. But failure to do so could be worse for the national reputation at home and abroad, analysts say.

“No country wants to see a former president indicted or expelled in an orange jumpsuit. In the case of our country, it’s not just a (declaration) on the notion of democracy in small d, but it’s also another nail in the coffin of the myth of American exceptionalism,” says Asher Hildebrand, an associate professor at Duke University, a former staffer of Democratic Rep. David Price of North Carolina. “We’re used to seeing it in d other countries, but we’re not used to seeing it here.”

But Trump should be prosecuted anyway, Price adds. “The goal is not unity. It’s responsibility.”

Ruth Ben-Ghiat, a New York University professor who studies global fascism and autocracy, notes the struggle to maintain the example of American democracy while exposing its vulnerabilities and shortcomings.

“America has always had a sort of dual profile. On the one hand, it has been a beacon of democracy for the world, for millions of refugees and immigrants who came here to escape dictatorships,” says Ben -Ghiat, who writes about the topic regularly at But “America also helped shape the autocratic right-wing playbook it used during the Cold War to support all those military dictatorships.”

Prosecuting Trump “is extremely important not only to assert the rule of law and regain respect for these institutions”, but “important to restore the confidence of citizens and the world in democracy”, adds Ben-Ghiat, who provided the committee on January 6 a list of examples it collected where Trump endorsed violence.

Even if Trump is indicted, convicting him could be difficult.

“Everyone has to remember – one Trump supporter on the jury and it’s hanging,” former Sen. Claire McCaskill, a Democrat, told MSNBC’s “Morning Joe” on Thursday. “Choosing a jury anywhere in America that will be unanimous when it comes to Donald Trump is a tall order.”

History has shown that a rift has lingered after Trump’s defeat in 2020 and is unlikely to close any time soon.


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