Donald Trump conspired to nullify a presidential election and cling to power in defiance of the U.S. Constitution. That conspiracy culminated in an attempt to coerce the vice-president into subverting Congress’s formal count of Electoral College votes with the aid of an insurrectionary mob.
This much we’ve known for well over two years. There is little disagreement about whether today’s front-runner for the Republican presidential nomination tried to subvert democratic government in the United States (even as there is some debate about whether he consciously understood himself to be attempting as much). The more contentious question has been whether Trump violated any criminal statutes in the course of assaulting the rule of law.
On Tuesday, a federal grand jury found probable cause to believe that Trump’s actions were criminal. The Justice Department’s special counsel Jack Smith successfully indicted the former president on one count of conspiracy to defraud the United States, one count of obstruction of an official proceeding, one count of conspiracy to obstruct an official proceeding, and one count of conspiracy to impair others’ federal rights. The most serious of these charges are punishable by up to 20 years in prison.
Not all legal analysts are confident in the government’s case. The actions of those previously convicted under the relevant statutes do not bear a close resemblance to Trump’s behavior in the run-up to January 6. Of course, this may say more about the unprecedented nature of Trump’s activities than it does about the legitimacy of the DOJ’s statutory interpretations. Assume that the DOJ’s legal theory is correct and that it is a crime to attempt to nullify a federal election by pressuring the vice-president to obstruct the tallying of Electoral College votes. Even if this were unambiguously the case, there would be no precedent for prosecuting anyone for that deed since no one with personal access to a vice-president had ever attempted such a thing before.
Nevertheless, it is reasonable to question Trump’s criminal liability. There is no question that we are in uncharted legal territory. But many conservatives have not been content to argue, “It’s not entirely clear that Trump violated the law.” Rather, they’ve contended that the government’s case is so obviously weak that its decision to bring charges represents a constitutional crisis. In this view, the latest Trump indictment is nothing less than an assault on democracy and the rule of law in the United States.
“I remain concerned about the weaponization of Biden’s DOJ and its immense power used against political opponents,” South Carolina senator and Republican presidential candidate Tim Scott said Tuesday. “We’re watching Biden’s DOJ continue to hunt Republicans while protecting Democrats.”
Various conservative lawyers and commentators have rehearsed more measured versions of this same analysis. The National Review editorial board charges that “Jack Smith is endeavoring to criminalize protected political speech.” If the Justice Department succeeds in winning convictions on the basis of statutory interpretations as broad as Smith’s, this argument goes, there will be nothing to stop one party from prosecuting the other for “objectionable political conduct,” a state of affairs that “would undermine both electoral politics and the rule of law.”
I am no legal expert and so will refrain from making any strong claims about the viability of the DOJ’s case. It is clear, however, that a good number of legal analysts find the charges against Trump plausible.
Regardless, the right’s claim that the latest Trump indictment constitutes a threat to the rule of law and puts the U.S. on a slippery slope toward authoritarianism is a bit odd when one considers the alternative.
Tuesday’s indictment did not tell us a ton we didn’t already know about Trump’s ham-fisted approximation of a coup d’etat. But it provided one chilling new detail: At one point, a deputy White House counsel warned Assistant Attorney General Jeffrey Clark that, were Trump to stay in office in defiance of the election results, there would be “riots in every major city in the United States.” Clark allegedly replied, “That’s why there’s an Insurrection Act.” In other words: A Justice Department official argued that it would be fine for the president to cling to power undemocratically because Trump could use the Insurrection Act to sic the armed forces on any civil resistance.
As this allegation underscores, the alternative to prosecuting Trump and his co-conspirators is to establish the precedent that a sitting president can plot an authoritarian takeover of the U.S. government without facing any formal repercussions.
By contrast, if we accept conservatives’ dim view of Smith’s case, it sets the precedent that, when a sitting president plots an authoritarian takeover of the U.S. government, the Justice Department may deploy tendentious interpretations of existing statutes to try to hold him or her criminally accountable.
It is difficult to see how the latter precedent is more threatening to democratic governance than the former. And this is all the harder to see when one observes that Trump is poised to win the Republican presidential nomination in a rout and is currently polling even with Biden in a hypothetical 2024 rematch. The slippery slope that leads from “letting Trump get away with attempting a coup” to “the evisceration of the rule of law in the United States” is remarkably short. Trump has said explicitly, for years, that he believes the Justice Department’s primary loyalty should be to the president. He has promised to use the DOJ’s power against his political enemies. And in the aftermath of the 2020 election, his associates in that department participated in an attempt to overturn a presidential election. Since then, Trump and his allies have vowed to consolidate their political control over nonpartisan agencies in general and federal law enforcement in particular.
To be sure, criminally convicting Trump would not necessarily prevent his return to the White House. It is unclear whether the government can try Trump on Tuesday’s charges before the 2024 election. And even if it could, Trump could still remain on the ballot and then pardon himself upon winning.
Nevertheless, even if Trump and his co-conspirators were ultimately to receive pardons, it seems likely that the precedent of their prosecution would deter others from repeating the same offenses. After all, neither the success of any future authoritarian scheme nor the subsequent election of a president willing to issue pardons to authoritarian schemers could be known in advance. The threat of prosecution could therefore lead future Jeffrey Clarks to prioritize minimizing their odds of going to prison over maximizing the power of Trump (or any other would-be tyrant).
Yet the singular nature of Trump’s actions makes it difficult to see much peril in the DOJ’s prosecution, whatever one makes of its merits. Conservatives have leaned on the notion that Trump is the victim of a selective and politicized prosecution. As National Review’s Jim Geraghty writes, “If you’re going to indict a former president … you want the crime to be an act that anyone of any status would be indicted for in similar circumstances.”
It is far from clear that Tuesday’s indictment fails to meet this standard. True, it is difficult to imagine “anyone of any status” being indicted in similar circumstances, but that’s because it is difficult for an ordinary American to ever find themselves in such circumstances. Just about the only means by which a regular Joe could pressure state election officials to ignore vote counts and lobby the vice-president to throw an election would be to send strongly worded emails to their staffers, who would proceed to delete them. Of course, the legality of an illicit action does not hinge on its efficacy. But it seems clear that if an ordinary American replicated Trump’s efforts, there’s a good chance that their conduct would never reach the public consciousness, in which case, a criminal indictment would be impossible.
By contrast, as Semafor’s Benjy Sarlin notes, if one imagines a lower-level public official engaging in behavior similar to Trump’s, it becomes markedly less difficult to envision their prosecution. If a county executive were caught on tape pressuring officials to change an election’s results, I don’t think many would react with incredulous outrage to news of that executive’s indictment.
Ultimately, the judge and jurors adjudicating Trump’s case must put the law above any utilitarian calculus. If the former president did not violate any laws beyond a reasonable doubt, then he should not be sent to prison, irrespective of the risks inherent in his ongoing freedom. The rule of law is important.
Commentators, however, are free to speculate on whether one legal outcome would have worse practical consequences than another. Prosecuting a former president under an unprecedented legal theory may present some risks for democratic life. But allowing an authoritarian presidential front-runner to escape all consequences for an attempted coup surely presents graver perils.
More on the Trump January 6 indictment
- The Case(s) Against Donald Trump
- For Republicans, Abetting Coups Is a Good Career Move
- Trump Supporter Charged With Threatening to Kill Trump’s Trial Judge