Prosecuting Donald Trump: Damned if we do, more damned if we don’t

It’s hard, almost impossible, to open a newspaper or log onto an online news site these days without running into a story about the legal issues former president Donald Trump is facing. With over 90 indictments, with criminal and civil liability, this man who loves to brag about his ‘perfect’ this and ‘outstanding’ that, usually in ALL-CAPS, has set an unenviable record for former heads of state, and has provoked a contentious dialogue—that sounds like a monologue or harangue from some corners of the political space—that makes the post-Watergate trauma of Richard Nixon seem picayune by comparison.

     One camp believes that prosecution, conviction, and imprisonment of Trump for any of his many alleged crimes would lead to widespread violence and the end of American democracy. Another camp believes just the opposite. The sad thing is that both are probably not too far wrong.

     Hard-core supporters of Donald Trump believe that he’s being persecuted for political purposes—which he loudly and incessantly proclaims—and wouldn’t support holding him accountable despite overwhelming evidence of some of his crimes and the lame excuses he and his lawyers give when confronted with this evidence. It is highly likely, then, that some of them will set up a loud online cry if he’s convicted, let alone incarcerated. They already mistrust the government and will only mistrust it more in such a case. It’s also likely that some of these people will take their proclivity for violence beyond the rhetorical.

     On the other side, there are those who will lose faith in the government if he is not held accountable, and who have already convicted him in their minds—which is the wrong thing to do under our Constitution, despite his own blabbering admissions. Some of the more rabid of these will be upset if a jury, after having heard all evidence presented by the various prosecutors, finds him not guilty. While less likely to be violent than their far right counterparts, it can’t be entirely ruled out.

     There is left, then, those in the middle, some tepid Trump supporters, some fervently opposed to the man, who see the murky middle ground. Whatever happens, there will be trouble.

     What, therefore, is the nation to do. When the choice is between two bad outcomes, one must assess the situation to determine which is the least desirable outcome, and then go with the other.

     I just happen to be one who believes that failure to hold Trump accountable for his transgressions, despite the problems that will be generated by doing so, is far worse than the alternative.

     Fordham and Boston University law professor Jed Shugerman wrote in a New York Times April 9, 2023, editorial that the case against Trump by New York DA Alvin Bragg was not only weak but ‘damaged the rule of law and set a troubling precedent.’  While he made a few compelling arguments, he trod lightly on the many other things that Trump had been accused of at the time. Other pundits speculated that the specter of a former president possible going to jail damaged the American image internationally.

     Now, a lot of this hand wringing happened before the Georgia election interference indictment, the NY AG’s case on business fraud (which is civil, not criminal), and the two DOJ indictments for unauthorized retention of classified documents and inciting the January 6 Capitol incursion. I’ve seen less of this breast beating since those came out, but on the far right, many who initially were tepid in support of Trump, or who condemned the Capitol riots, have shifted back behind the Trump bandwagon, some even hinting at violence unless the cases are dropped.

     That, as far as I’m concerned, shows the danger of not holding the man accountable for his crimes. Let a jury decide his guilt or lack of guilt after evidence has been presented, and let a judge decide appropriate punishment, to include time behind bars. To do less is to make a complete mockery of the  American system of justice that claims that the law applies equally to everyone and that no one is above the law.

     We have systems to deal with those who resort to violence if Trump is convicted. They can be housed in the same penal facility. Four years of his administration eroded trust in this country globally, inflicting a wound on American prestige and influence that will take decades to heal. Let’s not make that wound worse by demonstrating hypocrisy and letting him skate. Let him be convicted by his own words. For example, his recent announcement that a president must be immune from punishment even if he ‘goes over the line of legality’ in order to do his (or her one day?) job. I’ve always thought that the president’s job was to faithfully execute the laws and to defend the Constitution. His view seems to be the president’s duty is to do what’s best for him without accountability.

     Let’s show the world that our pious words were sincere, that when we said that we believed in liberty and justice for all, it wasn’t just an empty phrase. Let the justice system that our Founding Fathers (as imperfect as they were) built in order to form ‘a more perfect union’ work the way it was meant to work. As the late John Lewis always said, ‘let’s make some good trouble’ for a change.