I know many on the right are responding to the latest indictment of Donald Trump with a variety of defenses, from the claim that the indictment is criminalizing free speech, to the idea that Trump was merely following the advice of his counsel. These are misguided (speech that is in furtherance of a crime or a conspiracy to commit a crime is not protected, for example), and I highly recommend this episode of the Bulwark Podcast for a thorough rundown of the merits of the case.
But I do want to pause to acknowledge that, on the surface at least, the many indictments of Donald Trump, a leading opposition candidate to the sitting President, by that President’s justice department, is not a good look. It appears as if we’re living in a banana republic, where those in power lock up their political opponents. The fact that there have been 3, likely soon to be 4, separate indictments of many counts of criminal behavior that are likely to tie up Trump in court while he’s running for President is admittedly unprecedented and deeply troubling.
But that doesn’t make it wrong. Leaving aside the case in New York which most agree is not a slam dunk, the two cases brought by Jack Smith contain extremely credible evidence. Much of the evidence, indeed, has been known for a long time, thanks to previous reporting, the work of the January 6 House Committee, and statements by many members of the Trump administration. As unfortunate as it is to see a Presidential candidate facing legal attacks by his opponent’s justice department, far worse would be to let the behavior alleged in these indictments go unpunished.
In the classified documents case, Donald Trump is accused of actions far worse than the mishandling of classified information by Joe Biden, Mike Pence and even Hillary Clinton. Trump, who repeatedly advocated for the protection of classified information when Clinton was the one mishandling it, himself not only showed extreme disregard for its sensitivity, but actively resisted returning it to the government when asked. He is credibly accused of lying to the government and his own lawyers about his possession of these documents, in addition to being on tape admitting to not having declassified them. If you haven’t already, read at least the first four pages of the indictment to understand just how much further Trump’s behavior went than the aforementioned officials, all of whom cooperated with federal officials. The “raid” on Mar-a-Lago and subsequent criminal charges are not the actions of an over-active justice department, but a necessary last resort in response to egregiously illegal behavior. To let this go would indeed represent a two-tiered justice system. One in which former Presidents or Presidential candidates enjoy immunity for behavior that would land any lower-level government employee in prison. This does not make us a banana republic.
Of course, illegal possession of classified documents pales in comparison to attempted subversion of democracy. You should read the January 6 indictment too (or, if you prefer, listen to it). But the gist is this: Trump, despite being told repeatedly by lawyers, justice department officials (including his own Attorney General) and others that there was no evidence of election fraud sufficient to change the outcome of the election, conspired with multiple individuals in an attempt to reject the legitimate result of a free and fair election by a variety of unlawful means. The third paragraph of the indictment states clearly that Trump had a right to lie about the election outcome and challenge it in court. This is expressly not what he is being charged with. Rather, the charges are for his involvement in conspiracies to defraud the American people of their right to vote.
Over the course of these cases, we will see the evidence for these claims. Much of it is already known if you’ve been paying attention or watched the January 6 hearings. Even if he is ultimately not convicted, whether because a Jury decides his behavior was not criminal, or because he wins the election before the cases are resolved and is able to derail them, the idea that a President can behave in such a way without being held accountable is incredibly dangerous to our democracy and the rule of law. Bad as the optics may be, the Justice Department had no choice but to pursue these cases. And far from this being a witch hunt conducted by a politically driven Justice Department, it’s fairly clear that Merrick Garland initially resisted taking these steps precisely because he was afraid of the precedent it would set. But the actions of Trump and the evidence uncovered by the January 6 committee forced his hand.
You don’t have to take the word of a Never-Trumper like me for this, though. Mitch McConnel, in justifying his decision not to vote to convict Trump in the second impeachment, said:
President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn't get away with anything yet – yet.
We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.
McConnel claimed that although Trump couldn’t be impeached after he’d left office, he was not immune to being held accountable by the courts. Yet many on the right are now arguing that his actions leading up to January 6 were not criminal, and that the appropriate remedy is political. In other words, as President you basically have no incentive not to try to overturn an election loss, since if you fail you’ll be out of office and immune from impeachment, and also immune from criminal prosecution since apparently pressuring people to overturn an election is protected speech. And if you succeed, well, then you can use the power of the presidency to avoid accountability for as long as you can get away with it.
This is obviously anathema to the idea of democracy and the rule of law, which is why Smith is right to bring these charges, and why we as Americans must conclude, as Trump’s own Vice President has, that Trump is unfit to be President:
"I really do believe that anyone who puts themselves over the Constitution should never be President of the United States," he said. "And anyone who asks someone else to put themselves over the Constitution should never be President of the United States again."
I sincerely hope that Republicans will choose someone who will uphold the constitution as their standard-bearer in 2024. But if not, the rest of us must ensure they do not inflict a second Trump administration on this country - this time one without conscientious objectors like Pence standing in the way of authoritarianism.