As former prosecutors, we are often asked the “could” question. Given the facts in the public record, could former president Donald Trump be charged with a federal crime. Our answer with respect to much of the conduct unearthed by the January 6 Committee and others is “yes.”
Here, we decided to answer a more fraught question: assuming the Justice Department could establish at trial all the elements of his various crimes, should it bring a federal case against Trump?
Barbara McQuade: The DOJ Should Charge Trump
If prosecutors gather sufficient evidence to obtain and sustain a conviction, then they should file charges against Trump. The DOJ Principles of Federal Prosecution provide when the evidence is sufficient, charges should be filed unless (1) the prosecution would serve no substantial interest, (2) the person is subject to effective prosecution in another jurisdiction or (3) a non-criminal alternative to prosecution exists.
Here, items two and three are easily dismissed. A prosecution in Georgia, for instance, would not effectively vindicate the federal interests at stake. 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.
Similarly, non-criminal alternatives are inadequate to hold Trump accountable. Trump was impeached, but not convicted for his role in the Jan. 6 attack. And although civil suits have been filed against Trump for his conduct resulting in death and property damage in the Jan. 6 attack, civil liability in those cases is insufficient to capture his broader months-long criminal conspiracy to subvert the presidential election.
So, the key question becomes whether prosecution would serve no substantial federal 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. All three factors favor prosecution of Trump.
First, the nature and seriousness of the offense is clear. If successful, Trump’s efforts would have displaced the outcome of a free and fair election in favor of the losing candidate. This result is antithetical to our democracy. In recent years, Dan Quayle certified the votes that elected Bill Clinton over George H.W. Bush, who graciously attended the inauguration of his successor, just as every then-living president has done since George Washington. Vice President Al Gore certified his own electoral defeat to George W. Bush. 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.”
Second, the deterrent effect of prosecution is incredibly important here. One of the reasons that we punish criminal conduct is to deter the defendant or others from committing the same crime again. If Trump were to escape criminal conviction after deliberately attempting to subvert our election, he would be emboldened to try it again in the future. Other candidates would copy the idea, and maybe even perfect it, such that fair elections in America become a thing of the past. Already, we have seen an erosion of faith in our electoral system because of Trump’s false claims of voter fraud. To discourage others from engaging in similar misconduct, Trump must be held accountable.
Third, Trump’s culpability also favors prosecution. At the time that Trump allegedly engaged in these offenses, he was the President of the United States, constitutionally bound to take care that the laws be faithfully executed. Above all others, Trump had a public responsibility to serve the American people. Instead, he pushed baseless lies and conspiracy theories that badly damaged our democracy to advance his personal and political interests. And because the United States holds itself out as a model of democracy, his conduct violated not only his duty to the American people, but also his obligation as leader of the free world.
Although criminal charges against Trump would be viewed by his supporters as an improper partisan political attack on a former president, and could even spark civil unrest, the alternative is simply unacceptable. If DOJ can marshal evidence sufficient to convict Trump, prosecutors must charge him.
Chuck Rosenberg: The DOJ Should Not Charge Trump
Trump waged an egregious inside attack on our democracy and prosecuting him for it would be just and warranted. While an argument could be made that Trump should be charged, an imperfect analogy offers another possible path.
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 excoriated by editorials in newspapers throughout the country, and by numerous politicians. 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 his rationale to Congress in testimony before the House Judiciary Committee in October 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. It was wise to pardon (rather than prosecute) Nixon. It was best for the country in 1974 to move past a disgraced president and turn toward the future. So too, now. Like Nixon, Trump is (thank goodness) 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. That seems unhealthy.
Second, a federal prosecution would distract our president, our Congress, and our nation from important work, including fixing things broken by the Trump administration. We seem dreadfully distracted now, but important things still need our attention. That was precisely the point Ford made in his congressional testimony.
Third, charging Trump could appear vindictive to his many supporters. They may view any prosecution as personal and political. Even if inaccurate, a perception of score-settling is a dangerous path for our nation to travel. 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. That is not democratic. And that is certainly not American, though it happens in other countries. Decisions about who to prosecute must always be independent and based on facts and law, and not on which side wins.
Ford reportedly carried in his wallet after his presidency an excerpt from a 1915 Supreme Court case, 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. In 2001 Kennedy presented to Ford a Profile in Courage Award for 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.”
Forgoing prosecution, of course, arguably undermines our rule of law, particularly where a president has repeatedly flouted norms, upended rules, and violated criminal statutes.
But perhaps some lessons will be reinforced in a post-Trump era. 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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