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Opinion It will be bad if Merrick Garland prosecutes Trump — and worse if he doesn’t

Former Trump campaign manager Bill Stepien is seen on the screen in Washington, D.C., on June 13. (Jabin Botsford/The Washington Post)

It will set a disturbing precedent if Attorney General Merrick Garland prosecutes former president Donald Trump for alleged crimes. But I believe it will set a worse precedent if Garland doesn’t.

There are obvious risks in a political system where criminal charges and jail sentences can be used to achieve political ends.

All we need to do is look to South America, where former presidents Carlos Menem of Argentina, Alberto Fujimori of Peru and Luiz Inácio Lula da Silva of Brazil all were sentenced to prison terms for various crimes including, in Fujimori’s case, the creation of a murderous right-wing death squad. In each case, die-hard supporters believed their hero had been railroaded for political purposes. Those prosecutions may have served justice. But their sentences did nothing, at least in the short term, for unity or stability.

And the prosecutions created an incentive for revenge. If Lula defeats President Jair Bolsonaro in Brazil’s October election, will the Trump-like Bolsonaro be put in the dock? Closer to home, would the next Republican administration invent some reason to bring charges against President Biden or his son Hunter?

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We should not rush to become that kind of country. But it might be even more dangerous to live in the sort of nation where a president can violate the law with absolute impunity. Once, we might have worried about a leader who would risk shooting a man on Fifth Avenue. Now, we risk being governed by a president who will try his best to negate the will of the voters and remain in office despite having been dismissed.

Edward B. Foley: There is a better option to keep Trump out of office than prosecution

The Jan. 6 House selectcommittee, in its riveting public hearings, has made what strikes this non-lawyer as a compelling case that Trump orchestrated a fraudulent and ultimately violent attempt to overturn the result of the 2020 election.

Trump’s involvement in what amounted to a failed coup went far beyond the incendiary speech on the Ellipse that launched the mob toward the Capitol. And he persisted even though, as we now know, Trump was repeatedly told that his claims of a “stolen election” were nonsense.

Bill Stepien, Trump’s former campaign manager, told him beforehand that a “red mirage” on election night would make it look as if Trump was winning — but only temporarily. Trump’s attorney general, William P. Barr, said Trump’s repeated claims of voter fraud were “completely bogus and silly” — and told Trump to his face that the allegations were worthless.

Despite this, Trump went ahead not just with incendiary tweets, but with phone calls to election officials in hotly contested states pressuring them to “find” nonexistent Trump votes or decertify the election results or name “alternate” slates of electors. He called supporters to D.C. for a climactic confrontation on the day when Congress and the vice president would formally certify Biden’s election. And he raised $250 million in donations for an “election defense fund” that did not exist.

Although our democracy survived, this was far from a victimless crime. Capitol Police Officer Caroline Edwards, who suffered a concussion while defending the Capitol from the mob, told of slipping in blood. Arizona House Speaker Rusty Bowers and Georgia election worker Shaye Moss told the committee of the vicious and horrifying death threats they received. Moss testified that a Trump supporter came to her grandmother’s house in an attempt to make some sort of “citizens’ arrest.”

Garland has to decide whether there is evidence Trump committed one or more crimes, whether prosecutors can prove his guilt beyond a reasonable doubt and whether bringing charges against a former president is simply unimaginable. The first two decisions will depend on what the experienced prosecutors at the Justice Department conclude. The last is up to him.

He will be pilloried either way. But he needs to understand that deciding not to prosecute would send a clear message to future presidents: Do whatever you like, and there will be no accountability. No consequences.

To a layman’s eyes and ears, the select committee has made a powerful case for prosecution. We have not heard a defense from Trump — thanks largely to the decision by House Minority Leader Kevin McCarthy (R-Calif.) not to name GOP members to the panel. And, of course, in any legal proceeding Trump would be considered innocent until proven guilty.

But something that should be important to every American is already on trial: the idea that we are all equal before the law, and equally responsible to it.

The real test should be whether charges would be filed against Donald Smith or Donald Jones, given the same facts. If the answer is yes, and we are the country we say we are, charges must be filed against Donald Trump as well.

The Jan. 6 insurrection

Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.

Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.

What we know about what Trump did on Jan. 6: New details emerged when Hutchinson testified before the committee and shared what she saw and heard on Jan. 6.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.

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