Published on Medium
First published in The Trenchant Observer on August 2, 2021 (Updated August 23, 2021)
1) Donald Ayer and Norman Eisen, “Trump’s conduct needs a federal investigation, CNN, August 20, 2021 (Updated 3:08 PM ET.
2) “The indictment of Trump: The Democratic wall of silence begins to break,” The Trenchant Observer, August 3, 2021.
3) Neal K. Katyal, “The Future Criminal Case Against Donald Trump, New York Times, June 14, 2022.
Mr. Katyal is a professor at Georgetown University Law Center, was an acting solicitor general in the Obama administration and is a co-author of “Impeach: The Case Against Donald Trump.”
We have set forth the considerations which we believe argue strongly for the indictment and prosecution of Donald Trump for his election-related and other crimes, and for the prosecution of his Republican co-conspirators who joined him in a vast conspiracy to overthrow the election and the Constitution of the United States.
1) “IMPUNITY: The biggest and most important story no one will cover,” The Trenchant Observer, June 21, 2021.
2) “REPRISE: When will Trump be indicted?” The Trenchant Observer, June 20, 2021.
3) “America has become a Country of the Absurd,” The Trenchant Observer, June 6, 2021.
4) “Sleepwalking in the garden of fascism: ‘Merrily we roll along,'” The Trenchant Observer, June 2, 2021.
The basic argument is quite simple: Trump and others appear to have committed serious crimes, often in full public view, and he and they should be indicted and prosecuted for committing them.
A fundamental norm of a democratic state governed by law is that the authors of serious crimes must be prosecuted and sent to prison if found guilty. This rule should apply no matter who they are.
President Joe Biden and Attorney General Merrick Garland have solemnly stated (Garland under oath) that they would not let political considerations influence Department of Justice decisions on whether or not to prosecute individuals.
Both Biden and Garland have violated these promises, in a most egregious and blatant manner, by refusing to prosecute Donald Trump and his co-conspirators.
There appears to be an iron-clad agreement between President Biden, Attorney General Garland, and Democrats in Congress, not to raise this issue, that is, not to even talk about it.
Republicans, for their part, have bowed to Trump in supporting The Big Lie that he won the 2020 election, and can hardly be expected to push for his prosecution.
A Democratic Conspiracy of Silence
We are faced with a Democratic conspiracy of silence regarding whether Trump should be indicted. It is not a criminal conspiracy, like Trump’s conspiracy to overthrow the election and the Constitution, but it is a conspiracy in the broader sense of the term.
The news media, perhaps out of deference to Democratic desires, or perhaps due to their inability to think independently and outside the box of daily “breaking news” stories, have failed to raise this question in any systematic way. Why they haven’t is a great mystery, one of the great mysteries of mass psychology and mass political propaganda, which future historians of the press and mass media will be challenged to figure out.
As we wrote in “America has become a Country of the Absurd” on June 6, 2021,
It is as if some foreign country that is an enemy of democracy had launched a massive missile attack on the United States and unleashed a tasteless, odorless gas on the entire population, causing total amnesia regarding certain tenets of democracy and the rule of law.
One such bedrock principle of the rule of law is that crimes must be punished, that suspected criminals must be indicted and tried and, when found guilty, sent to prison.
Why do Biden, Garland, and the Democrats refuse to indict Trump and his co-conspirators?
Let us now consider the arguments for not prosecuting Trump and his co-conspirators. To date, in The Trenchant Observer we have focused on the rule of law, and the mandatory requirements of a rule-of-law state to prosecute the authors of serious crimes, even when they are present or former high government officials.
But what are the arguments against prosecuting Trump and his Republican co-conspirators?
All but one of these arguments are not legal arguments, and the one legal argument–related to the requirement of proving intent–is a spurious legal argument made by politicians playing lawyer, not by serious lawyers. However inadvertently, these politicians and pundits have assumed the role of defense attorneys, making arguments for the Defense, however weak. If any Justice Department lawyers are making these arguments, or even raising them in background conversations with journalists, they are doing so in bad faith.
Nonetheless, aside from the “intent” argument, the non-legal arguments against indicting Trump must be seriously considered, because they have apparently persuaded Biden, Garland, and the Democratic leaders to forego the prosecution of Trump and his allies for the serious electoral and other crimes they have apparently committed.
What, indeed, might be the arguments against prosecuting Trump and his Republican co-conspirators?
First, Democrats may be making the political calculation that they can retain control of the Senate and the House if they just focus on their economic and other programs, which are aimed at improving the lives of voters.
The assumption seems to be that potential Trump voters will be rationally persuaded to vote for Democrats in 2022 and 2024 when they see how their lives have improved under Biden (e.g., child credits, management of the coronavirus pandemic, unemployment assistance, and jobs).
This assumption is of dubious validity, as indicated by the polls that show over 60% of the voters give Biden credit for managing the Covid-19 pandemic well, but only 49-50% believe that he is doing a good job as president. The job approval numbers are taken from the Rasmussen polls, which have been quite accurate on this issue.
The assumption fails to take into consideration how political propaganda, the existence of a Trump cult, and the creation of an alternate universe enveloping Trump’s followers affects the likelihood of rational calculations in deciding for whom to vote.
Second, Biden and the Democrats seem to be afraid of taking on Trump and his supporters directly, particularly by indicting him. They seem to believe that indicting Trump and his cronies for the crimes they appear to have committed would inflame public opinion and strengthen support for Trump and the Republican Party, contributing to Republican victories in the Congressional elections in 2022 and 2024, and the presidential election in 2024.
Republican legislators, almost to a man or a woman, have hitched their stars to Donald Trump, and appear to believe that allegiance to Trump and his alternate universe of propaganda and lies is their best bet for getting reelected in 2022 and beyond.
Third, the Democrats may be afraid of the violence indicting Trump could unleash against them personally, and against their families. Threats against Republican officials and Democratic legislators and officials who opposed Trump were widespread after the November 3, 2020 election, when Trump and his supporters were trying to overthrow the presidential election. There have been reports that legislators’ votes are being influenced by fears of violence against them and their families.
1) Tom Hamburger, Rosalind S. Helderman, and Amy Gardner,”‘We are in harm’s way’: Election officials fear for their personal safety amid torrent of false claims about voting,” Washington Post August 12, 2021 (2:59 p.m. EDT).
2) Michael Gerson, “The threat of violence now infuses GOP politics. We should all be afraid.” Washington Post, May 20, 2021 (2:58 p.m. EDT).
3) “Three immediate steps to stop threats of assassination and other acts of political terror,” The Trenchant Observer, January 14, 2021.
4) “Rehearsal for a coup d’état? Violence in American cities and ‘the chaos president’,” The Trenchant Observer, June 2, 2020.
Fourth, the Democrats may fear that prosecuting Trump and other Republicans would lead to widespread civil unrest which would ultimately help Trump and the Republicans win the elections in 2022 and 2024.
Fifth, Biden, Garland, and Democratic leaders may be afraid of what is known as “jury nullification”. Jury nullification occurs when one member of the jury, despite overwhelming evidence of guilt, simply refuses to vote to convict, resulting in a hung jury.
Jury nullification was once a problem in trying to get convictions of white defendants accused of committing terrorist crimes against black victims, e.g., in the Jim Crow South. Even today, it can be a problem in seeking convictions of white police officers for committing crimes against black victims, and even affect prosecutorial decisions on whether or not to bring charges, or what charges to bring. It has been a problem in trying mob leaders, where jurors may either be under the influence of the mob or intimidated by mob threats of violence.
Nonetheless, in all of these kinds of cases, the demand for justice has led to prosecution of the defendants, often resulting in convictions. Prosecutors have sophisticated ways of challengung jurors who might vote to acquit despite the evidence. Lying during questioning in the jury selection process, however difficult to prove, is itself a crime for which a prospective juror may be prosecuted.
Still, prospective jurors who are ardent Trump supporters may lie during jury selection and then vote to acquit Trump or one of his co-conspirators. That is also true in trying a case against a white police officer for a crime against a black victim.
Finally, the Democrats may be calculating that the House Special Committee investigation into the January 6 insurrection will bring out evidence that will weaken Trump.
However, there is a timing problem. The impact of the investigation and its findings on Trump’s propaganda bubble and alternate universe may come too late to significantly impact voters’ attitudes in the 2022 primaries and elections.
There is no reason to choose between a course of active prosecutions and the House Special Committee inquiry. The Democrats and supporters of our democracy are in an all-out struggle with the Republicans for power. All available weapons should be used if they hope to win.
The disadvantages of not prosecuting Trump and his co-cospirators
As there has been virtually no public discussion of the reasons that have led the Democrats to refrain from indicting Trump and his co-conspirators for their apparent crimes, the disadvantages of this course of action have not been articulated or discussed seriously in the media.
One disadvantage may be that by failing to prosecute Trump, the Democrats are foregoing the most promising course of action that could burst Trump’s propaganda bubble, and bring down his illusory alternate universe, anchored by The Big Lie. Potentially, prosecution of Trump could free some Republican legislators from Trump’s hold over them and the Republican Party. So long as Trump retains his iron grip on the allegiances of his cult followers and the Republican Party, the chances of a return to a more normal functioning of Congress will remain negligible.
A second disadvantage of the Democrats’ current timid approach to prosecuting Trump may be that the army of insurrectionists who sought to overthrow the 2020 presidential election will remain in place, following a playbook informed by an understanding of all the critical decision points where they were thwarted in 2020. Now, through state legislation and other actions, they are earnestly trying to fix these critical decision points so that the next attempt to overthrow the election and the Constitution will succeed.
A third disadvantage may be that by revealing their weakness and lack of resolve to punish electoral and other crimes, Democrats may be giving a green light to Republicans and Trump cult-followers to attempt a coup d’état again, in 2024, and even to manipulate the results of legislative elections in 2022. With strength on the Republican side and weakness on the Democratic side, such efforts could result in success.
Republicans have abandoned the democratic creed and any belief they may have had in the past in democracy and the rule of law. Those who are leading the ongoing insurrection, with the acquiescence of virtually all other Republican officials, are engaged in a raw struggle for power at any cost.
The Democrats would do well to reflect on whether their current strategy of not prosecuting Trump and his co-conspirators, for the many serious crimes they appear to have committed, will ultimately benefit the Republicans or the Democrats in that power struggle.
Reader’s Comment on Biden’s and Garland’s Dilemma
In a comment, one reader forcefully states the dilemma which Biden and Garland seem to face:
SHOULD TRUMP BE INDICTED? . . . A likely scenario: — Indict Trump; go to trial; pick a jury (on which it is inevitable at least one Trumpist will sit); get a hung jury; 2nd trial; 2nd hung jury . . . ad infinitum. Political fallout: Trump crows, “See, I won!” Biden’s and country’s attention is diverted. New deal #II crashes. USA eats crow. Growing worldwide authoritarianism blossoms further. Russia, China, Taliban cheer. Earth continues to warm. Science and scientists disappear. Quantum theory becomes meaningless. Klingons attack.
In response to David, several points may be stressed.
First, if we allow prospects of jury nullification to determine whether to prosecute present or former high officials for serious crimes, we have essentially abandoned the rule of law for the rule of the mob. In doing so, we may have given political movements led by criminals strong incentives for stirring up their supporters in order to ensure the impunity of their leaders. This will inevitably foster civil unrest.
Second, even if we defer the prosecution of Trump–but not beyond the statute of limitations–jury nullification would be less of a risk in indicting some of Trump’s co-conspirators.
Third, beginning prosecution of some of the older apparent crimes by Trump,,such as the 10 obstruction of justice cases outlined in the Mueller Report, would make good sense, because the older cases don’t involve the passions of the January 6 Capitol Insurrection, don’t interfere with the House Select Committee’s investigation, and prevent the statutes of limitation from running out.
Ultimately, while David highlights the nature of our dilemma, even if he exaggerates the threat of a Klingon attack, rising to the challenge to defend the rule of law and our democracy is something our predecessors have found the courage to do on many occasions, from the Revolutionary War to the Civil War, World War II, and the Civil Rights Movement.
What can we, as citizens, do to change this situation?
In the face of this broad conspiracy of silence among Democratic officials and leaders, and mass hypnosis among the press and the media, what can we, as citizens, do to affect the situation?
When there is a conspiracy of silence, or mass forgetfulness, the most important actions will be aimed at breaking that silence.
Suggestions for immediate action:
1) Citizens should contact their Congressmen and Senators to push for open discussion of these issues;
2) Citizens should urge their House representatives to push for hearings on these issues, in order to hold Biden and Garland to account for their promises not to allow political considerations to influence prosecution decisions;
3) Citizens should contact journalists at their local and at national newspapers, and cable news hosts (like Rachel Maddow), and urge them to cover these issues intensively; and
4) Citizens should write letters to the editor demanding news coverage of these issues.
Others may have additional ideas. However, these actions would represent a good start.
Whatever one may think should be done, there is virtually no case for not talking about the issues raised above.
The Trenchant Observer