The case for the prosecution of Donald J. Trump

Commentary

I’m not alone in my quest for the criminal indictment and trial of Donald Trump after he leaves office

In whatever manner Donald Trump leaves the presidency – resignation, the 25^th Amendment, impeachment and removal, or, if all else fails, when his term expires on January 20^th – Donald Trump should be indicted and prosecuted for his crimes. This is a position I’ve advocated in my last few columns.

This is also a position for which I’ve gotten substantial pushback from readers and friends whom I respect. Their arguments include:

• Biden can’t waste political capital on this;
• There are more important agenda items the Biden administration must focus on;
• A criminal prosecution will be divisive when the country needs healing;
• Trump was simply exercising his First Amendment right to free speech.

In a post yesterday, I wrote this in response*:

And to those Democrats who believe that Trump should not be prosecuted after he leaves office because it will divert attention from Biden’s agenda items or “waste precious political capital,” I ask you to reconsider. Trump’s needs to held accountable. If the Cabinet and the Congress won’t do it, then the judicial system must. No one is above the law. Trump broke the law this week and he’s broken the law innumerable other times. He must be tried and, if convicted, punished to the full extent of the law. I know trying him is a double-edged sword. Putting him on trial will anger his base (and who knows how many more “non-base” Republican followers), potentially wreaking more havoc on the country. But not trying him…in essence giving him a “get out of jail free” card…will embolden his base. And who knows what the consequences of that will be.

(*Note: I did not address the divisiveness issue because no matter what happens there will be divisiveness. I did not address the free speech issue because speech is not always free, particularly if it incites criminal action and there is evidence of the speakers “state of mind” to incite.)

Well, I discovered I’m not alone in my point of view; The Washington Post published two Op-Ed columns today basically supporting the same position.

The first, written by Randall D. Eliason was headlined, “Trump should be criminally investigated.” Eliason spent 12 years as an assistant United States attorney for the District of Columbia, is a contributing columnist for The Washington Post and writes about white collar crime and federal criminal law. He currently teaches at George Washington Law School, and taught at American University Washington College of Law and at Georgetown University Law Center. He has a JD from Harvard Law School.

Ellison closes his column with this:

Many are urging Trump’s immediate impeachment or removal by invocation of the 25th Amendment. That should absolutely be done, as soon as possible. But it wouldn’t be enough. There must be a forceful response to this outrage beyond merely depriving Trump of his final days in office. After Jan. 20, the Biden Justice Department should convene a grand jury investigation of Trump’s unprecedented assault on America’s democracy.

The second, written by Jennifer Rubin, was headlined, “Trump can and must be prosecuted.” Rubin writes reported opinion for The Washington Post. She covers politics and policy, foreign and domestic, and provides insight into the conservative movement, the Republican and Democratic parties, and threats to Western democracies. Prior to her career in journalism, Rubin practiced labor law for two decades, an experience that informs and enriches her work.

Rubin concludes:

No president has done anything remotely like what Trump did, so his prosecution would not run the risk of criminalizing ordinary political activity or even highly unacceptable behavior (such as obstruction of justice, as the Mueller investigation had found). As we come to grasp the enormity of Wednesday’s political and criminal offense, the notion of letting Trump “walk” can rightfully be seen as preposterous.

Here are links and PDFs (for those of who who don’t subscribe to the Post) to both Op-Eds. Take a look and let me know what you think.

“Trump should be criminally investigated.” by Randall D. Eliason

Link: https://www.washingtonpost.com/opinions/trump-should-be-criminally-investigated/2021/01/07/900ffa1a-5135-11eb-b96e-0e54447b23a1_story.html?itid=lk_inline_manual_21

“Trump can and must be prosecuted.” by Jennifer Rubin

Link: https://www.washingtonpost.com/opinions/2021/01/08/trump-can-must-be-prosecuted/