The Pros and Cons of Charging Trump With a Crime | The Report

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Imagine, as many detractors of Donald Trump do, that the former president ends up decked out in full orange, successfully prosecuted and dragged off to prison in an unprecedented incarceration more commonly associated with third world nations or undemocratic states.

Or consider the possibility that Trump is indeed indicted on charges stemming from the House Jan. 6 committee and Department of Justice but found not guilty, fueling partisan anger and conspiracy theories about a “deep state” out to get Trump.

Or think about the chance that authorities will decline to prosecute Trump at all, leaving many Americans wondering what the point was of investigations and hearings and raising questions abroad about whether the US is serious about accountability and justice standards demanded of other countries.

As the Jan. 6 committee finishes its first, searing series of hearings, it’s still unclear what, if anything will happen to the man committee members describe as the mastermind of an effort to overturn a democratic election and undermine the nation’s very form of government.

But any option will be painful, analysts agree, and not likely to bring the sort of unity desperately needed after such a violently divisive time in American history.

“On the one hand, prosecuting someone (like Trump) who continues to be popular has the potential to make that person into a martyr and to facilitate and to enable radicalize, even further the movement they are associated with,” says Aziz Huq, a professor and constitutional law scholar at the University of Chicago Law School.

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On the other hand, he says, failing to hold people at the highest levels accountable for Jan. 6 could delegitimize the very democratic institutions that were under assault that day.

“The question to ask is whether criminal prosecution moves us in the right direction,” adds Huq, who is the former director of the Brennan Center for Justice’s liberty and national security project. “I’m pretty sure that criminal prosecution wouldn’t be high on my list to do that.”

Going after the world’s once most powerful man like he’s a common criminal could make things worse, argues Paul Rosenzweig, a principal at Red Branch consulting who was senior counsel to Ken Starr during the Whitewater investigation of former President Bill Clinton.

“Years of experience prosecuting fraught political cases (and defending others) has taught me that criminal law is a blunt tool for achieving justice and a poor means of resolving political issues,” Rosenzweig writes in The Atlantic. “In my judgment, the chances that Trump will be convicted of any crime are slim to none. And though I am no political analyst, my guess is that a failure to convict will only embolden him and his followers.”

But many argue that those circumstances don’t apply here, since the crimes being outlined in connection with Trump go to the nation’s democratic infrastructure itself.

“On the criminal front, I think it is very important that he be charged, because it has been so unprecedented,” says Barbara Comstock, a former Republican member of Congress and Justice Department spokeswoman during the George W. Bush administration. It’s precedent-shattering to indict an immediate past president, but “he blew through every norm,” Comstock says.

“If we are going to uphold the rule of law, we have to show no one is above prosecution.”

“I don’t think that would make him a martyr” if he is charged, Comstock adds. “I think it will make him a more pathetic figure.”

Lara Brown, director of the graduate School of Public Management at George Washington University, says it’s the principle that matters and which will endure as the test of America’s democracy.

“If we are going to uphold the rule of law, we have to show no one is above prosecution. That does not mean he will be convicted. But I absolutely believe the government has got to make the case that this sort of election conspiracy is not OK, because elections are the foundation of our democracy along with the rule of law. “

Polling shows a majority of Americans want Trump prosecuted, and that number has increased since the House Jan. 6 committee began its hearings. Nearly 6 in 10 Americans think Trump should face prosecution, an ABC/Ipsos a poll released earlier this week found. That compares with a January 2021 Washington Post/ABC poll taken right after the insurrection that found 54% of Americans thought Trump should be charged.

Americans aren’t used to seeing their leaders perp-walked to court, let alone incarcerated. A list of world leaders sentenced to prison includes those from China, Sudan, Iraq and countries with tumultuous domestic political environments. Among close US allies, former French President Nicolas Sarkozy was twice found guilty of campaign finance violations. He appealed the first sentence and was allowed to serve the second in home confinement.When former President Richard Nixon resigned after Watergate, his successor, President Gerald Ford, pardoned Nixon, sparing him from any prosecution. Then-Sen. Edward M. Kennedy, Massachusetts Democrat, excoriated Ford for it at the time. But later, Kennedy lauded Ford at the former president’s Profile in Courage award ceremony, saying Ford had helped heal the nation after a painful time.

Indicting Trump, experts note, could be deeply unsettling for Americans, who largely see their country as an example for the rest of the world. But failing to do so could be worse for the national reputation at home and abroad, analysts say.

“No country wants to see a former president indicted or marched off in an orange jumpsuit. In our country’s case, it’s not just a (statement) on the notion of small-d democracy, but it’s also another nail in the coffin of the myth of American exceptionalism, “says Duke University associate professor Asher Hildebrand, a former staffer to Democratic Rep. David Price of North Carolina. “We’re used to seeing it in other countries, but we’re not used to seeing it here.”

But Trump should be prosecuted anyway, Price adds. “The goal is not unity. It’s accountability.”

Ruth Ben-Ghiat, a New York University professor who studies world fascism and autocracy, notes the struggle to uphold the example of American democracy while exposing its vulnerabilities and shortcomings.

“America has always had a double profile in a way. On the one hand, it has been a beacon of democracy for the world, for millions of refugees and immigrants who came here to escape dictatorships,” says Ben-Ghiat, who writes on the topic regularly at lucid.substack.com. But “America has also helped to shape the right-wing autocratic playbook it used in the Cold War to prop up all those military dictatorships.”

Prosecuting Trump “is incredibly important not only to affirm the rule of law and win back respect for those institutions” but “important to restore trust of citizens and the world in democracy,” adds Ben-Ghiat, who provided the Jan. 6 committee with a list of examples she has collected where Trump endorsed violence.

Even if Trump is indicted, convicting him could be difficult.

“Everyone needs to remember one Trump supporter on the jury and it’s hung,” former Sen. Claire McCaskill, a Democrat, told MSNBC’s “Morning Joe” on Thursday. “Picking a jury anywhere in America that’s going to be unanimous when it comes to Donald Trump is a tall order.”

A divide, history has shown, that has endured past Trump’s 2020 loss and isn’t expected to heal soon.

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