To Charge or Not to Charge
A debate over the greatest danger.
(Photo by CHANDAN KHANNA/AFP via Getty Images)
In today’s Bulwark, my colleague, Mona Charen once again makes the case against prosecuting Donald Trump. You should read the whole thing. She makes a cogent and compelling argument that indicting and trying Trump in a court of law is simply too risky for democracy.
I disagree. Strongly. We debated the issue on our special weekly “Secret” podcast, which Bulwark + members can access here. I think it is safe to say that our discussion was respectful, but intense.
Mona is right that holding Trump legally accountable for his many crimes is dangerous. But failing to hold him accountable is even more dangerous.
What makes our debate interesting, I think, is that we agree on the fundamentals: We both regard Trump’s potential return to the presidency as a disaster. So this is a debate between two people with deeply shared values and political perspectives.
But we have a very different take on how the legal system should deal with a former president who tried to overturn an election, attempted a coup, fomented a violent insurrection, and may have violated the Espionage Act.
Of course, a trial of the U.S. v. Donald J Trump carries massive risks, but I argued that letting him off carries even greater ones, because it has long-term consequences for the rule of law, the imperial presidency, and the precedent it would set for political and legal appeasement.
Trump is convinced that he is above the law; and a decision to give him a legal pass — despite the evidence of his criminality — would simply confirm him in his conviction that L'état, c'est moi.
I won’t recapitulate all of our argument there (you really should listen to the whole thing), but some of the toplines:
Despite the short-term risks of a Trump bump in the GOP, we have to keep our eye on a longer time horizon, and not be distracted by the ephemera of last’s week’s polls. The decision on charging — or not charging — Trump will set a precedent that will shape our constitutional order for decades.
Trump has exposed the flaw in our constitutional order, which, we now learn, is largely based upon an honor code. This is our one — perhaps last — chance to make an unambiguous statement that the president is not, in fact, above the law, even if he has a deranged, mobilized, and angry constituency.
As Mona notes, there is open talk now of civil war, and she believes that the wiser course is to refrain from taking legal action that might open a Pandora’s box of political chaos.
But let’s turn that around: On our podcast, I argued that surrendering to intimidation and accepting the idea that the president is above the law is far most dangerous, not merely because it will embolden Trump, but also the Trump manqués of the future.
If he’s indicted, of course, Trump will play the martyr, and the GOP base will rally around the besieged and disgraced ex-president. But…
Trump is going to play the martyr no matter what.
If the DOJ decided not to charge him with any violations of the law, Trump would declare: EXONERATION! Despite all the Deep State attacks, grand juries, and January 6th evidence… despite the raid of my house, and the biggest FBI investigation EVAH… they found nothing. (See Mueller investigation.)
We shouldn’t assume that it won’t get worse, because it can always get worse. Don’t assume that we won’t have the revenge tour, the civil war, and the outrage anyway — on top of giving Trump a get out of jail free pass.
That so many people on the right have lost their minds and no longer support the rule of law is not a reason for the rest of us to stand down. To the contrary, that means that the rest of us need to double down and reinforce the rule of law and not take it for granted. The MAGAverse’s insanity and the GOP’s abandonment of the rule of the law should not become a veto power over doing justice.
In her excellent piece, Mona argues that Trump should be tried at the ballot box, rather than a court of law. But we have courts of law for a reason: We are a nation of laws, and those laws are an essential bulwark of our constitutional system.
Mona makes an important point: “Trials are too uncertain to risk the republic,” she writes. Those risks are very real, which is why we should pay attention to her warnings.
But we have an ex-president who led a conspiracy to overthrow an election, unleashed a violent attack on the seat of our government, obstructed justice — and threatens to do it all over again.
Nothing is riskier than letting him get away with it.
“Jan. 6 Panel Questions Trump Cabinet Members on 25th Amendment Talks,” Via the NYT
“FBI’s Mar-a-Lago search followed months of resistance, delay by Trump,” Via the Wapo
“Defeated GOP Extremist Laura Loomer: 'I'm Not Conceding, Because I'm A Winner!' via the HuffPo
“2 men convicted in plot to kidnap Michigan Gov. Whitmer,” Via the AP
A blue undertow?
From Politico’s playbook this a.m.:
A win [in NY 19] by Democrats is the clearest evidence yet that the 2022 election is unlikely to turn out quite the way that conventional wisdom imagined less than a year ago, after Republican GLENN YOUNGKIN rode a red wave into the Virginia governor’s mansion.
That doesn’t necessarily mean that Dems will hold the House and Senate. Nor does it mean that Republicans will be in the minority come 2023. But “Ryan’s victory in the marginal swing district suggests that Democrats have at least a chance of bucking both traditional midterm losses for the party that controls White House, and an economy that many voters say they still believe is headed in the wrong direction,” as Zach Montellaro writes.
Our colleague, Bill, coins a new term:
1. Team Normal’s New Hampshire Nightmare
Republicans could have had one of the most popular governors in America flipping a Dem Senate seat, writes Tim Miller in today’s Bulwark. Instead, they’ve got General Don Bolduc.
Governor Sununu took a pass on the race, not being particularly keen on jobs where rioters target his office if he doesn’t submit to a game show host’s autocratic delusions, leaving the Republican primary wide open.
The man who has filled that vacuum is emblematic of the “candidate quality” issues that sad turtle Mitch recently alluded to.
The frontrunner is Brigadier General Don Bolduc. He is not, like Sununu, a popular mainstream R with a track record of success; he’s an absolute loon who lost a Senate primary in 2020 and is a favorite in Bannon’s War Room where he is referred to only as “The General,” as if he were some kind of exiled Kazak communist who Bannon is demanding be released from prison.
Which happens to be exactly the profile Republican primary voters are looking for this year. As such, “The General” leads in a recent poll with 32 percent. Trailing with 16 percent is milquetoast State Senate President Chuck Morse, who endorsed Jeb Bush in the 2016 primary followed by a smattering of candidates in single digits—most notably a gentleman named Kevin Smith, a New England town manager whose campaign landing page features a video of him at the border (Mexico, not Canada).
2. Reflections on My Mom’s Eviction
In today’s Bulwark Bill Lueders offers a case study in how senior care facilities are kicking out elderly people, and getting away with it.
What happened to my mother happens to elderly people in America all the time. A facility will conclude that a patient has become too much work or is no longer a good deal financially and find a way to get rid of her. Often, as with Elaine, nursing homes and other senior care facilities evict residents while they are temporarily moved to another facility.
The people who don't want to risk prosecuting Trump are missing a serious point. He is not a one-off. He is the tip of the spear of people who want to turn our democracy into a theocracy. He will pass from the scene, but others are waiting to fill his spot. Some may prove to be even more successful.
This is not a political debate about the size of government, social programs, or political differences between Democrats and Republicans. It is a battle to preserve our democracy. This issue must not be viewed solely as a political question but as one that can establish a legal precedent for the next want-to-be dictator.
I've said this before but it bears repeating: To indict Trump is to risk insurrection; to give him a pass is to guarantee his tyranny