s former prosecutors, we are often asked the “Could” question. According to the facts available in the public records, CouldFormer President Donald Trump will be indicted for a federal crime. Our answer with respect to much of the conduct unearthed by the January 6 Committee and others is “yes.”
We decided to address a harder question. Assuming the Justice Department can prove all elements of the various crimes, shouldIt brought a federal case against Trump.
Barbara McQuade: Trump Should Be Charged by The DOJ
Prosecutors should bring charges against Trump if they have enough evidence. If sufficient evidence has been gathered, the DOJ Principles of Federal Prosecution state that charges should not be filed against Trump. This is except when (1) prosecution would have no material interest or (2) prosecution could take place in another country. (3) There is a viable non-criminal remedy.
Item two and number three could be dismissed. An example of this is a Georgia case that would fail to effectively defend the federal interests. The Georgia investigation relates solely to Trump’s efforts to coerce Secretary of State Brad Raffensperger to “find” him 11,780 votes to subvert the choice of that state’s voters. Trump’s misconduct is far more extensive than that, and includes pressuring Vice President Mike Pence to throw out others states’ vote certifications, soliciting alternative slates of electors and attempting to use DOJ for “an improper purpose.” Trump’s alleged misconduct victimized not just the people of Georgia, but all U.S. citizens.
Trump cannot be held responsible for his actions if there are no other criminal options. Trump was impeached but not convicted of his part in the Jan. 6, attack. Although civil lawsuits have been brought against Trump in connection with his Jan. 6th attack-related conduct, it is not enough to hold him responsible for the wider criminal conspiracy he had over the course of months to undermine the presidency’s election.
It is important to ask whether prosecution will serve any federally significant interest. To answer this question, prosecutors are instructed to consider several factors, at least three of which are relevant here: the nature and seriousness of the offense, the deterrent effect of prosecution and the person’s culpability. Trump will be tried for his crimes if all three are considered.
The nature of the crime and its severity are obvious. If successful, Trump’s efforts would have displaced the outcome of a free and fair election in favor of the losing candidate. This is a violation of our democratic system. Dan Quayle has certified that Bill Clinton was elected over George H.W. in recent years. Bush was graciously present at the induction of his successor as has every president since George Washington. Al Gore, the Vice President, has certified George W. Bush his electoral defeat. As retired Judge J. Michael Luttig testified during the Jan. 6 Committee hearing on Thursday, Trump’s plan would have “plunged America” into “a revolution within a constitutional crisis.”
The deterrent power of prosecution in this case is also very important. To deter others or the defendant from doing the same thing again, we penalize criminal conduct. Trump would feel empowered to attempt to undermine our elections again if he were not convicted. The idea would be copied by other candidates and possibly even improved upon, so that American fair elections are no more. Already, we have seen an erosion of faith in our electoral system because of Trump’s false claims of voter fraud. Trump’s false claims of voter fraud must be investigated and held responsible to discourage other people from doing the same.
Third, Trump’s culpability also favors prosecution. These offenses were committed at the time Trump was President of the United States. He is constitutionally bound by the Constitution to ensure that laws are faithfully applied. Trump was accountable to the American people above all else. He instead spread conspiracy theories and lies that damaged democracy in order to further his own political agenda. His conduct was not only a violation of his duty as an American citizen, but of his leadership role in free and open societies.
While criminal charges against Trump could be seen by Trump’s supporters as an inappropriate partisan political attack upon a former president and may even cause civil unrest in the future, it is unacceptable. Prosecutors should charge Trump only if the DOJ is able to gather enough evidence.
Chuck Rosenberg: Trump should not be charged by the DOJ
Trump committed an indecent attack inside on democracy. Prosecution would be right and justifiable. Trump could still be prosecuted, but an imperfect analogy might offer another avenue.
In September 1974, President Gerald Ford granted to a disgraced Richard Nixon a “full and unconditional pardon.” Any prospect of prosecuting Nixon for federal crimes he committed as president vanished with that pardon.
Ford was criticized by many politicians and editorials in national newspapers. The New York Times labeled the pardon a “profoundly unwise, divisive, and unjust act” that “made a mockery of the claim of equal justice.” The Washington Post called the pardon a “continuation of a coverup.”
Senator Edward M. Kennedy of Massachusetts opined that Ford’s pardon was bestowed at “the wrong time and the wrong place” and that Nixon was “the wrong person to receive a pre-indictment pardon.” In a press release, Kennedy noted that Ford’s “instincts [were] clearly out of touch with the vast majority of the people of America.”
Ford explained to Congress his reasoning in testimony before House Judiciary Committee on October 24, 1974.
“I was absolutely convinced then as I am now that if we had had [an] indictment, a trial, a conviction … that the attention of the President, the Congress and the American people would have been diverted from the problems that we have to solve.”
Ford was right. Nixon was right to be pardoned, rather than charged. In 1974, it was better for the nation to get over a disgraced President and move on towards the future. It is the same now. Trump, just like Nixon was a former president. His conduct was criminal and outrageous, but the Justice Department—or President Joseph Biden—might consider Ford’s logic. Why?
First, prosecuting Trump keeps him in the public eye—and in the public debate—for years to come. It seems unhealthy.
A federal prosecution could also distract the president, Congress and nation from more important tasks, such as fixing problems caused by Trump’s administration. Although we may seem distracted, there are still important matters that need our attention. Ford’s testimony before Congress made this exact point.
The third reason is that Trump may be charged with vindictive acts against his supporters. Many of his supporters may consider any charges to be personal or political. Even though it may be inaccurate, the perception of score-settling can lead to dangerous decisions for our country. That’s why the “lock her up” chants in 2016 were so unsettling.
This leads to the fourth reason to consider Ford’s prescription—a concern about the pattern repeating itself. We cannot allow transitions of power to be accompanied by expectations—or worse, realities—that opponents of those in power go to jail. It isn’t democratic. This is not American even though it occurs in other countries. The decision about which party to pursue must be made independently and on the basis of facts.
Ford was said to have kept in his pocket a copy of a 1915 Supreme Court case after he became president. United States v. Burdick. In Burdick, the Court noted that a pardon imputes guilt and accepting a pardon (which Nixon did) is “a confession of [guilt].” That apparently gave Ford some measure of comfort in his later years.
Even Kennedy had a change of heart about Ford’s 1974 pardon of Nixon. Kennedy offered Ford an apology in 2001. Profil in Courage AwardFor pardoning Nixon. Kennedy noted that “[u]nlike many of us at the time, President Ford recognized that the nation had to move forward … [and] made a courageous decision….” Kennedy acknowledged that “time has a way of clarifying past events, and now we see that President Ford was right. His courage … made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.”
Avoiding prosecution is arguably a breach of our rule of law. This is especially true if a president has violated or flouted rules and criminal statutes.
Maybe some of the lessons learned in Trump’s era will also be reinforced. One is that America is better—more forgiving, more judicious, more thoughtful, more selfless, more courageous, more temperate, and more civil—than the arc of Trump’s leadership suggested. To demonstrate that vision—and to hasten Trump’s irrelevance—Ford’s roadmap could provide a better path.
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