Donald Trump Is Not Above the Law

Far too many in the mainstream media - many being the same ones who for years have engaged in false equivalency when comparing Democrat positions and GOP lies and thus aided in the transformation of the GOP into a semi-fascist party - are wringing their hands and about to fall on the fainting sofas at the prospect of Donald Trump at long last being indicted for his many crimes while in office and since his departure from the White House.  These spineless individuals, many of whom would not know true investigative reporting if it smacked them in the head, say indicting Trump even if guilty would be "too divisive" and harm the country.  As if Trump's crimes and the white nationalist and "Christian" extermist agenda of today's GOP in and of itself isn't highly divisive.  Moreover, giving Trump yet another pass would merely set the stage for more crimes and send a dangerous message that if one is wealthy and/or has held high office that they are above the law - something that is already a problem but which would be writ large if Trump is not indicted if the facts warrant it.  And increasingly, the facts appear to warrant indictment both for the January 6, 2021 coup attempt and now the criminal possession of top secret documents which I personally can only believe Trump was going to seek to monetize.  A very long main editorial in the New York Times makes this very argument and deserves to be read in its entirety.  Here are highlights: 

Over the course of this summer, the nation has been transfixed by the House select committee’s hearings on the events of Jan. 6, 2021, and how or whether Donald Trump might face accountability for what happened that day. The Justice Department remained largely silent about its investigations of the former president until this month, when the F.B.I. searched his home in Palm Beach, Fla., in a case related to his handling of classified documents. The spectacle of a former president facing criminal investigation raises profound questions about American democracy, and these questions demand answers.

Mr. Trump’s unprecedented assault on the integrity of American democracy requires a criminal investigation. The disturbing details of his postelection misfeasance, meticulously assembled by the Jan. 6 committee, leave little doubt that Mr. Trump sought to subvert the Constitution and overturn the will of the American people. The president, defeated at the polls in 2020, tried to enlist federal law enforcement authorities, state officials and administrators of the nation’s electoral system in a furious effort to remain in power. When all else failed, he roused an armed mob that stormed the Capitol and threatened lawmakers.

The Justice Department is reportedly examining Mr. Trump’s conduct, including his role in trying to overturn the election and in taking home classified documents. If Attorney General Merrick Garland and his staff conclude that there is sufficient evidence to establish Mr. Trump’s guilt on a serious charge in a court of law, then they must seek an indictment too.

No American president has ever been criminally prosecuted after leaving office. When President Gerald Ford pardoned Richard Nixon, he ensured that Nixon would not be prosecuted for crimes committed during the Watergate scandal; Ford explained this decision with the warning that such a prosecution posed grave risks of rousing “ugly passions” and worsening political polarization.

That warning is just as salient today. Pursuing prosecution of Mr. Trump could further entrench support for him and play into the conspiracy theories he has sought to stoke. It could inflame the bitter partisan divide, even to the point of civil unrest. . . . The risks of political escalation are obvious. The Democratic and Republican parties are already in the thick of a cycle of retribution that could last generations.

There is an even more immediate threat of further violence, and it is a possibility that Americans should, sadly, be prepared for. In the hours after federal agents began a court-approved search of Mr. Trump’s residence in Palm Beach, based on a warrant investigating possible violations of three federal laws, including one that governs the handling of defense information under the Espionage Act, his most fervent supporters escalated their rhetoric to the language of warfare.

Mr. Garland has been deliberate, methodical and scrupulous in his leadership of the Justice Department’s investigations of the Jan. 6 attack and the transfer of documents to Mr. Trump’s home. On Friday a redacted version of the affidavit used to obtain the warrant was released, revealing that the Justice Department asked to search the premises to recover documents because of concerns that their disclosure could compromise “clandestine human sources” of intelligence and because it had probable cause to believe it would find “evidence of obstruction” at the premises.

No matter how careful Mr. Garland is or how measured the prosecution might be, there is a real and significant risk from those who believe that any criticism of Mr. Trump justifies an extreme response.

Yet it is a far greater risk to do nothing when action is called for. Aside from letting Mr. Trump escape punishment, doing nothing to hold him accountable for his actions in the months leading up to Jan. 6 could set an irresistible precedent for future presidents. Why not attempt to stay in power by any means necessary or use the power of the office to enrich oneself or punish one’s enemies, knowing that the law does not apply to presidents in or out of office?

More important, democratic government is an ideal that must constantly be made real. America is not sustained by a set of principles; it is sustained by resolute action to defend those principles.

Immediately after the Jan. 6 insurrection, cabinet members reportedly debated privately whether to remove Mr. Trump from power under the authority of the 25th Amendment. A week after the attack, the House impeached Mr. Trump for the second time. This editorial board supported his impeachment and removal from office; we also suggested that the former president and lawmakers who participated in the Jan. 6 plot could be permanently barred from holding office under a provision of the 14th Amendment that applies to any official who has “engaged in insurrection or rebellion” or given “aid or comfort” to those who have done so. But most Republicans in the Senate refused to convict Mr. Trump, and Congress has yet to invoke that section of the 14th Amendment against him. As a result, the threat that Mr. Trump and his most ardent supporters pose to American democracy has metastasized.

Even now, the former president continues to spread lies about the 2020 election and denounce his vice president, Mike Pence, for not breaking the law on his behalf.

Mr. Trump’s actions as a public official, like no others since the Civil War, attacked the heart of our system of government. He used the power of his office to subvert the rule of law. If we hesitate to call those actions and their perpetrator criminal, then we are saying he is above the law and giving license to future presidents to do whatever they want.

In addition to a federal investigation by the Justice Department, Mr. Trump is facing a swirl of civil and criminal liability in several other cases . . . The specific crimes the Justice Department could consider would likely involve Mr. Trump’s fraudulent efforts to get election officials in Georgia, Arizona and elsewhere to declare him the winner even though he lost their states . . . . The government could also charge Mr. Trump with seditious conspiracy, a serious charge that federal prosecutors have already brought against leaders of far-right militia groups who participated in the Capitol invasion.

Other evidence points to other crimes, like obstruction of Congress, defined as a corrupt obstruction of the “proper administration of the law.” The fake-elector scheme that Mr. Trump and his associates pushed before Jan. 6 appears to meet this definition. That may explain why at least three of Mr. Trump’s campaign lawyers were unwilling to participate in the plot. People involved in it were told it was not “legally sound” by White House lawyers, but they moved forward with it anyway.

If Mr. Garland decides to pursue prosecution, a message that the Justice Department must send early and often is that even if Mr. Trump genuinely believed, as he claimed, that the election had been marred by fraud, his schemes to interfere in the certification of the vote would still be crimes. And even though Mr. Trump’s efforts failed, these efforts would still be crimes. More than 850 other Americans have already been charged with crimes for their roles in the Capitol attack. Well-meaning intentions did not shield them from the consequences of their actions. It would be unjust if Mr. Trump, the man who inspired them, faced no consequences.

No one should revel in the prospect of this or any former president facing criminal prosecution. Mr. Trump’s actions have brought shame on one of the world’s oldest democracies and destabilized its future. Even justice before the law will not erase that stain. Nor will prosecuting Mr. Trump fix the structural problems that led to the greatest crisis in American democracy since the Civil War. But it is a necessary first step toward doing so.