Photo-Illustration: Intelligencer; Photo: Alex Wong/Getty Images
the national interest

Prosecuting Trump Will Only Make Republicans Crazier, Warns Law Prof

How much crazier can they get, though?

Photo-Illustration: Intelligencer; Photo: Alex Wong/Getty Images

There is a scene in Life of Brian, the Monty Python comedy set in Palestine during Jesus’s lifetime, in which a condemned blasphemer, about to be stoned to death for uttering the word Jehovah, begins repeating the forbidden word. “You’re only making it worse for yourself,” warns the official in charge. “Worse?” asks the prisoner about to be executed, “How could it be worse?”

The scene came to mind when reading law professor and former Bush administration lawyer Jack Goldsmith sternly warning in the New York Times that Special Counsel Jack Smith is making a terrible error. Charging Donald Trump for his attempted autogolpe, he cautions, “reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.” Trump was a very bad boy, Goldsmith concedes, but prosecuting him will only make matters worse by making Republicans paranoid and vengeful.

First, Goldsmith argues that, unlike the documents case, which he concedes is straightforward, the January 6 investigation “involves novel applications of three criminal laws.” That is true, largely because Congress never thought to design criminal statutes to ban presidents from attempting to exploit ambiguities in the Electoral Count Act to seize an unelected second term.

Goldsmith proposes impeachment as a better remedy for the crime, lamenting that “the Senate passed up a chance” to disqualify Trump from holding office again. But this didn’t happen. And since Republican voters not only refuse to disqualify Trump, but actively endorse his delusional claims of fraud, the political options for holding him accountable for attempting to end American democracy are shrinking fast. “But here we are,” Goldsmith concedes, which seems like a remarkably sanguine response to a coup-plotter getting off scot-free and poised to regain power.

Next, Goldsmith argues that Republicans are going to be angry at the prosecution because they believe the Justice Department has systematically discriminated against Republicans. In his telling, they are correct to feel aggrieved:

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.

Goldsmith is right that the Justice Department’s investigations of Trump’s ties to Russia made some relatively small mistakes. But it’s hardly true that the investigation as a whole was excessive. (The Russia probe uncovered widespread criminality and non-prosecutable corruption, and Trump corruptly dangled pardons to dissuade Roger Stone and Paul Manafort from testifying about their involvement in Russia’s hack-and-leak operation.)

Nor is it true that Justice Department bias hurt Trump in 2016. Just the opposite: Anti-Clinton FBI agents leaked constantly while anti-Trump agents didn’t, so Clinton’s very minor email lapses cast a much darker shadow over her campaign than Trump’s deeply corrupt relationship with Russia did over his. If anybody has a right to be angry over political favoritism by the FBI — an agency that, after all, has always been run by Republicans — it’s Democrats.

Finally, and most incredibly, Goldsmith warns that Republicans will respond to Trump’s prosecution by losing faith in the Justice Department and demanding revenge. “It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government,” he predicts. “It may also exacerbate the criminalization of politics.”

That might sound scary if it weren’t for the fact that all these things have happened already. Tit-for-tat investigations? The last Democratic president and his Secretary of State faced no fewer than ten Benghazi investigations. The current one is about to be impeached even without any evidence of wrongdoing.

The criminalization of politics? Does Goldsmith not remember that Donald Trump has called for the prosecution of Hillary Clinton, Joe Biden, Barack Obama, and Nancy Pelosi, among many others? In office, Trump lobbied the Justice Department to bring charges against various enemies. Trump’s DOJ charged a Democratic lawyer in order to appease his demand for Democratic scalps, and appointed a special counsel, John Durham, to pursue Trump’s conspiracy theories, harassing his enemies with frivolous charges.

Of course, almost anything can always get worse. But Goldsmith is fundamentally mistaking cause and effect. The Republican Party already exists in an alternative universe in which Donald Trump has done nothing wrong, all his enemies should be locked up, and the justice system is controlled by communists. That paranoia created the crimes that Goldsmith now says should go unpunished.

Goldsmith’s op-ed is like a documentary run through the film projector backward. Jack Smith prosecuting Trump leads to Donald Trump coming to power as deranged crowds bray for the imprisonment of his opponent. He is right that the outcome from Smith’s prosecution will be terrible. But worse than the alternative? How could it be worse?

Law Prof: Charging Trump Will Only Make Republicans Crazier