The Washington PostDemocracy Dies in Darkness

Opinion The people v. Donald Trump: A new year’s update

Attorney General Merrick Garland in August. (AP Photo/Susan Walsh)
5 min

This promises to be the year in which the Justice Department will confront the momentous decision of whether to prosecute a former president.

Decisions, actually.

As prosecutors proceed along two tracks — Donald Trump’s handling of classified material at Mar-a-Lago and his role in seeking to prevent the peaceful transfer of power — it’s essential to keep in mind: This shouldn’t be a choice about which case to pursue. Both implicate important governmental interests. This is not a matter of either/or.

If special counsel Jack Smith and Attorney General Merrick Garland conclude that charges are warranted in both, they shouldn’t hesitate to proceed for fear that they are being unduly punitive. Charging Trump separately wouldn’t be vindictive; it would be vindication — of the rule of law and the principle that no person is above it.

The Mar-a-Lago probe appears to be on the faster track. It’s a simpler case, more amenable to a speedy decision about whether to seek an indictment. Failing to safeguard classified documents and obstructing the government’s efforts to recover them are serious matters, and the full facts of Trump’s behavior remain unknown. Those who have dismissed the Mar-a-Lago investigation as looking into a trivial misstep have been wrong from the start and, as the facts have emerged, look even more misguided.

And yet: Little in our nation’s history compares to the horror of a president seeking to overturn the results of a lawful election. The criminal referrals by the Jan 6. committee don’t carry legal weight, but it is enormously consequential that a congressional panel has, for the first time, concluded that a former president should be subject to criminal investigation and prosecution. It conveys a simple message: This conduct was serious. It cannot be ignored.

As a legal matter, this will be the far harder case to prove. As reprehensible as Trump’s actions were, there are difficult questions of separation of powers and free speech wrapped up in any prosecution. The information assembled by the select committee hasn’t been tested in an adversarial process or subjected to the requirements of proving specific elements of a crime beyond a reasonable doubt.

At the same time, the select committee was hobbled by its inability to compel testimony from key figures. The Justice Department has the power to do that, and, if witnesses assert their right against self-incrimination, to grant immunity in exchange for testimony. There is a lot we don’t yet know.

This is an evolution for me. I’ve written in the past that it’s more important to prevent problems from recurring than to punish bad conduct. So as the George W. Bush administration left office, I argued against bringing criminal charges against Bush administration officials for authorizing torture. I doubted that “the symbolic benefit of any such prosecution would outweigh the inevitable costs.”

I had the same misgivings when it came to Trump, writing this in the immediate aftermath of the 2020 election about the prospect of prosecuting him: “It’s not an easy call. Anyone who believes it to be simple is not grappling with the implications of taking the unprecedented step of lodging criminal charges against a former president. The United States is not a place, chants notwithstanding, where those in power lock up their political enemies. There is a delicate line between the pursuit of justice and indulging the urge for retribution.”

Then came Jan. 6, 2021. Not simply the day itself but the accompanying efforts — to harness the power of the Justice Department to press Trump’s claim of a rigged election, to submit false slates of presidential electors, to pressure state officials into changing election results, and to persuade Vice President Mike Pence to refuse to count the electoral votes. All of this was part of what the select committee described as “a multipart plan to overturn the 2020 Presidential election.” As the committee found, “the central cause of January 6th was one man, former president Donald Trump, whom many others followed. None of the events of January 6th would have happened without him.”

This seems undeniable. Jan. 6 unleashed a dangerous, anarchic element in U.S. politics. Punishing only the rank-and-file extremists for their conduct that day without going after those who stoked their frenzy would not suffice to discourage this behavior down the road.

Yes, prosecuting a former president will have costs — inflaming an already polarized national debate, launching a potential tit-for-tat spiral of charges, letting Trump portray himself as a political martyr. Yet so does standing down. The political process may inflict its own punishment on Trump — let’s hope — but that is both uncertain and inadequate to the circumstances.

Prosecution would send a message of accountability in a system tilted against holding presidents responsible. Under long-standing Justice Department guidelines, Trump couldn’t be prosecuted while in office. It can’t be that former presidents enjoy what is in effect lifetime immunity from criminal consequences, especially when their actions strike at the very heart of our democracy.

That is an important lesson — not just for the former president but also for others who might be tempted to follow in his authoritarian footsteps.