#400 Musings Beyond the Bunker (Monday July 11)

"No one was tougher on china than Donald Trump."

Good morning,

I promised to focus Mondays on policy ideas. Today, however, my idea isn’t so much policy as it is a call for practical action. Here’s my idea for this Monday morning…

Don’t prosecute Trump!

Yes, I know many of you think we should. We have learned what a danger to American democracy this craven narcissist was and the dangers he and his allies continue to pose. Contrary to his apologists, he is not reviled simply because of bad manners, nor because of his well-documented acts of sexual harassment, nor his abusive business dealings, nor even his misuse of the presidential office. Nor is it even his many ill-conceived policies. It is about his crimes against American democracy and our free and fair elections. It would seem a no-brainer to prosecute him for all the crimes he has committed. But here’s my reasoning for why we should not prosecute this monster, but instead go after all who are around him:

THE CASE AGAINST HIM

The January 6th Committee presented a compelling case that Donald Trump is a traitor. He tried to steal an election. He disregarded the election results and the conclusions of his advisors and attempted to subvert the judgment of the people. He fomented violence, encouraging people at various times, but particularly on January 6th, to “fight like hell.” He fired up a mob of miscreants and acolytes to attack the Capitol. He removed security measures from the scene and waited three hours before acting to quell the violence. He didn’t act to protect his Vice President and members of Congress, using violent words. He delayed sending in forces to the Capitol, relishing the display. Then, when it was over, he raised money from his supporters with the stated intent of “fighting the big steal.” Yet, he spent the money for his own purposes.

All of this and more is now all documented, after a parade witnesses were interviewed by the Committee—virtually all Republicans and former Trump loyalists, many who were members of his administration. There is no disputing these facts. Curiously, although most Republican leaders want us to look the other way, or claim this was really nothing, there is little in the way of disputing the facts. There has been no Republican campaign to challenge the clear evidence and testimony—nobody on the Sunday morning news show circuit claiming that Trump’s actions were reasonable and sound or that the statements made by the witnesses were untrue—which should tell you something. The Republican leadership is under the thrall of Trump and/or are fearful that his base will hold against them standing up with the truth. So, what should be done?

GARLAND SHOULD DISPENSE WITH TRUMP

Trump should be humiliated publicly. Attorney General Garland should have a press conference and state that they’re going to decline to prosecute out of respect for the office—not the man. He should discuss the purpose of this decision. Trump is yesterday’s news. The facts demonstrate his criminality; but this is a case of prosecutorial discretion. There are good reasons not to prosecute, which should be made clear:

• This is realpolitik. They will never get a jury to convict Trump. They can’t be sure what snake will lie in the grass, get on a jury, and then vote against conviction.

• To prosecute Trump is to strengthen his narrative of lies and victimization.

• It is unseemly and a bad precedent to prosecute a former president. The Watergate example is a good one. Nixon was allowed to resign and ultimately was pardoned, in order to get the country moving forward again. Even if the Feds don’t prosecute, let Georgia and other states go after him in State proceedings.

The Justice Department should not allow Trump the opportunity to paint himself as martyr, chased down by overzealous “deep state” prosecutors because they’re scared of him. Don’t give him the narrative. Instead, tell him and his supporters that he is not worth the aggravation, distraction, and circus that would ensue.

On a political note, trying Trump will not sway a lot of voters. The sooner he is dispensed with, the sooner the Democrats can move on (and the Republicans can as well). It is a mistake for the Democrats to run on a “Trump’s awful and we’re not bad” platform. The Democrats need to run on a few simple ideas. They need to run on policy. Even Trump’s most ardent supporters and certainly the “mainstream” Republicans understand that he’s a troubled, stupid, dangerous narcissist. But running against his evil is not a platform.

To the extent the anti-democratic direction of the Republicans is a clear and present danger, the Democrats should concentrate on the substance of what’s going on and not the people doing it. Call the ridiculous restrictions on voting what it is—racism. Call the concentration on state legislatures and Secretaries of State, together with trying to give the legislature the right to overturn elections what it is—anti-democratic sedition.

GO AFTER THE REST OF THE CRIMINALS

The Justice Department should prosecute everyone in the Trump universe. Everyone who didn’t cooperate with the January 6th Committee should be on the list of defendants. Everyone propounding the lies about the election after clear evidence to the contrary was presented to them, everyone acting as an enabler, all of them should be prosecuted. Push and push hard. Allow plea bargains. The important thing is to show future members of future administrations teetering toward sedition and autocracy that there is no place for them to hide and that they will be held accountable. People need to know that there is a price to be paid for knuckling under to a strong man and not fulfilling their oath to protect and defend the Constitution.

With the recent issuance of subpoenas to many in Trump’s inner “legal” circle, I am heartened we are on the right course.

THE WATERGATE PRECEDENT

While I don’t mean to diminish the present crisis and compare this attempted coup, the undermining of our institutions, the violent attack on our leadership, breaching of the Capitol, and fomenting violence, by comparing them to a “third rate burglary,” but it’s instructive.

Watergate offers a good example of prosecuting those in the Nixon universe who were active participants in crimes, while allowing Nixon to fade off into ignominy. Haldeman, Ehrlichman, Liddy, Hunt, and the others found themselves serving time for their crimes. Even John Dean, who turned state’s evidence early, had to pay a price for what he did.

It is important to prosecute these seditionists because to not do so would diminish their crimes and tacitly validate or excuse their actions. It is important to prosecute them because to not do so would provide a lesson to future people following autocrats and criminals that it’s all okay. It isn’t. The lessons of history and the stability of our government in the future require that people be held accountable for their actions.

THE ALTERNATE CASE

I understand and empathize with the case that Trump must be prosecuted. The best case for pursuing Trump has been made by the great constitutional law scholar Lawrence Tribe and others in The Los Angeles Times. Here’s their argument:

“Atty. Gen. Merrick Garland [should] proceed toward charging Trump with federal crimes that the public record now amply establishes. Only then will this nation be able to move forward from the ongoing insurrection.

Beyond the avalanche of documents and testimony pointing to Trump’s guilt and the principle that no one is above the law, there is an additional reason to indict Trump for his multi-faceted conspiracy in 2020 to override the vote. Upon a conviction for inciting insurrection, or being an accessory to insurrection, Trump would be subject to disqualification from acquiring federal office.

Section 3 of the 14th Amendment directs: ‘No person shall . . . hold any office . . . under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution shall have engaged in insurrection or rebellion against the same.’’

…Holding Trump accountable — and disqualifying him from future office — would not be a partisan act, but one needed to preserve the republic.

Without a prosecution of Trump, here are three things that seem sure to happen if he were allowed to run again and either be lawfully elected or succeed in installing himself in office despite defeat in the electoral college, as he attempted to do in 2020:

The end of elections in which a majority of voters choose their leaders…

The use of the military for domestic control…You don’t have to be a clairvoyant to imagine how military force against political foes — and restraint of force to protect violent supporters — will be used if Trump regains office…

The end of accountability…On June 17, in Nashville, Trump said that if reelected, he would consider “very, very seriously” pardoning all the participants in the Jan. 6 insurrection…

If he returns to the White House, he will install his people in the Justice Department and turn the machinery of prosecution against his enemies and toward protecting his friends and his schemes.And should Trump get an encore, look to pre-World War II Germany for a mirror. A failed coup in 1923 taught Hitler a better route to dictatorship nine years later.

Those who repeat history are doomed to learn it. The hard way.”

BEAT TRUMP WITH BALLOTS AND NOT LAWSUITS

I understand the temptation. Crime must be punished. In a perfect world Trump should be held accountable in a court of law. I just don’t think it’s worth the effort, the distraction from the fight to save our democracy, or the risk of losing. And it will all be characterized by Trump as politically driven. Plus, I don’t think the electorate wants to hear about him anymore. They want to hear about the economy and the future. I don’t think an indictment, much less a conviction, is a sure thing. We should not grant him the attention and a possible “win” that he can use in a future campaign.

Have a great day,

Glenn

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