This story originally appeared in The Boston Globe June 2021
FutureProofTheCaseForProsecutingDonaldTrump.htm

Rewards for doing the president’s bidding

Saving American democracy for the long run requires a clear condemnation of the Trump presidency. That means making clear that no one is above the law.

Norms in a democracy are only as good as our willingness to enforce them.

After the precedent-busting, lawbreaking presidency of Donald Trump, Congress needs to pass new laws to constrain future officeholders. That’s the case the Globe has made in this series: curbs on the pardon power, safeguards against nepotism, broadening the power of Congress to investigate the president, protections for whistle-blowers, requirements that presidents make financial disclosures to root out conflicts of interest.

All of that is crucial to protect Americans against a repeat of the last four years.

"Presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished."

But imposing stricter rules on future presidents, by itself, is clearly insufficient. Those presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished — that ethics policies and legal requirements, both the existing ones and those Congress will hopefully enact in the future, are more than just words on paper.

Trump’s presidency didn’t just expose glaring legal weaknesses: It also made clear that our institutions are incapable of holding presidents accountable for breaking even our existing laws. If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

"Filing charges against former leaders is not a radical step."

So now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office.

That’s not a recommendation made lightly. The longstanding reluctance to prosecute former leaders is based on legitimate concerns about the justice system being used to settle political scores. But filing charges against former leaders is not a radical step, either: Foreign democracies, including South Korea, Italy, and France, routinely manage to prosecute crooked former leaders without starting down a slippery slope to authoritarianism. President Nicolas Sarkozy of France was recently found guilty of bribery, a decade after his predecessor, Jacques Chirac, was convicted of corruption. France’s democracy and its image around the world remain intact.

In the case of Trump, prosecutors would have plenty of potential crimes from which to choose. While Trump may be prosecuted for financial crimes he potentially committed before he became president, what is most important to go after are his actions during his time in office, especially those after the 2020 election, which culminated in fomenting a full-on, violent assault on American democracy.

First, there are Trump’s repeated attempts to obstruct justice, as documented in former special counsel Robert Mueller’s investigation into the former president’s campaign ties to Russia. As Mueller himself put it, while the investigators operated under the guidelines that a sitting president cannot be indicted — a view this editorial board disagrees with — the point of their investigation was to “preserve evidence” for prosecutors to evaluate after Trump left office.

Second, there are Trump’s efforts to overturn the Georgia election results. Trump’s call to Georgia’s secretary of state, in which he pressured the secretary to “find” enough votes to undo his defeat, was clear election interference, which is a violation of state and federal law. That means both Georgia and federal prosecutors can — and should — investigate the matter further.

Third, there’s Trump’s infamous incitement of insurrection, which he committed on national television. It is a federal crime to incite a riot or insurrection, and though Trump was impeached over this, he was wrongfully acquitted by the Senate, leaving the courts with the responsibility to hold him accountable. Even senators who acquitted him of the incitement charge alluded to the fact that his crime should be dealt with in the criminal justice system. “If you believe he committed a crime, he can be prosecuted like any other citizen,” said Senator Lindsey Graham, Republican of South Carolina, a longtime Trump ally. (And depending on how the investigations go — if prosecutors have enough evidence to show that Trump gave aid and comfort to insurrectionists — there’s a chance sedition charges could be brought against him, just like the charges his supporters who stormed the Capitol are likely to face.)

To avoid a potential political tit for tat, the Department of Justice and state prosecutors must remain completely apolitical in their handling of Trump’s case. “His crimes should be investigated independently, and the president should stay a thousand miles away,” Norman Eisen, a former ethics czar in the Obama administration, said in an interview. That’s exactly what President Biden has done so far, and he should continue to separate himself and resist any urge to weigh in one way or the other.

Congress’s failure to hold Trump accountable is one reason to break with precedent and prosecute him now. Another, perhaps more obvious reason, is that Trump’s misconduct ought to be handled differently because it was different. There’s a far stronger case that he committed serious crimes in office than could plausibly be made against even the country’s most unethical previous presidents. One of the reasons no president in history has been prosecuted for actions stemming from his presidency is that none of them before the 45th tried to instigate a coup.

"A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died."

The reluctance to prosecute presidents is deep-rooted, and extreme caution does make sense. (The last thing that the country needs is for Trump to be charged, tried, and then acquitted.) But it cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms. And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it. The events of Jan. 6, and those that led up to them, were an extreme abuse of power that few ever imagined a president would commit. A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died. Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial. To reform the presidency so that the last four years are never repeated, the country must go beyond passing laws: It must make clear through its actions that no person, not even the president, is above them.