Photo-Illustration: Intelligencer; Photo Getty Images
the national interest

Pence Makes It Clear Why It’s Necessary to Prosecute Trump

The GOP punishes the man who was “too honest,” not the coup leader.

Photo-Illustration: Intelligencer; Photo Getty Images

Every indictment has a villain, but Jack Smith’s second indictment against Donald Trump over his illegal scheme to hold onto power, has a hero: Mike Pence.

Up until the 2020 election, the then-vice-president had performed his task as an almost comically obsequious figure, slathering his boss in over the top praise as if he were a captive noble in the court of Genghis Khan. But Pence’s refusal to abide Trump’s authoritarian criminality after the election forms the narrative center of Smith’s indictment. At one point, Trump scolds Pence, “you’re too honest.” It’s an admonishment that concedes Trump’s criminal intent: he knew Pence was telling the truth about not having the power to overturn the election, and therefore that Trump’s case was built on lies. It also exposes the larger moral gulf separating the two Republicans.

Yet Pence’s hero’s journey has come to a rather noire ending. His popularity among Republicans, which hovered around 90 percent before January 6, 2021, crashed immediately and has not recovered. While he is formally running for president, he is polling in the low single-digits and is the mosthated candidate in the GOP field by a wide margin. In raw political terms, he is Robert F. Kennedy Jr.: a protest candidate whose support base lies largely outside his own party. The cost of Pence opposing Trump’s coup was to sacrifice his political career.

Pence’s grim fate is worth bearing in mind when you contemplate the historical ramifications of Smith’s indictment. The case against bringing charges against Trump is that it will elevate the stakes of the presidential election to existential levels, bringing about a new reality in which prison becomes the cost of defeat for Trump. (If he wins, he’ll simply terminate the case.) Before the 2020 election —that is, before any of the criminal schemes Smith is charging occurred — Joe Biden said bringing charges against Trump would be “a very, very unusual thing and probably not very, how can I say it? good for democracy — to be talking about prosecuting former presidents.”

The most intelligent version of the case against indicting Trump is not that he should be permitted to commit any crimes he wishes. It is that prosecutors should bend over backward to avoid criminalizing political disputes or putting a former president in prison when there is room for discretion.

Yet the political channels have distinctly failed to impose accountability for Trump’s wanton criminality. Today, he is roughly tied in national polls at the moment, which suggests (given his advantage in the Electoral College in each of the last two races) that he might be a slight favorite to win the 2024 election. That is obviously not a reason to charge him, but it does show the futility of leaving judgments about criminal behavior to the general public in a polarized environment.

The most logical process for punishing Trump for his coup attempt was impeachment, and Senate Republicans briefly entertained convicting Trump in the wake of the January 6 riot. But they first decided a trial needed to be slow in order to be legitimate, and then they decided they couldn’t impeach Trump after he had left office. Then they said the criminal justice system could handle it. “President Trump is still liable for everything he did while he was in office…” Mitch McConnell said. “We have a criminal justice system in this country.”

Republicans have since discovered that remaining at least passively loyal to Trump is the only path to retaining their political viability. Republicans who stood up to him are weak RINOs, regardless of how conservative or otherwise partisan they may be. During the Trump administration, his party widely assumed he was doomed to defeat (polling we now recognize as highly inaccurate indicated he was facing a landslide defeat). Fellow Republican elected officials and the officials who staffed Trump’s executive branch all acted on the assumption that their political future lay in maintaining credible distance from Trump. The future would belong to the non-Trumpiest of them.

But it has since become clear the party’s future is entirely Trumpian. Trump is running away with the nomination, and the closest thing to a competitor he has, Ron DeSantis, refuses to even say that Trump lost the 2020 election. When the latest indictment came down, DeSantis issued a statement communicating solidarity with Trump:

As President, I will end the weaponization of government, replace the FBI Director, and ensure a single standard of justice for all Americans. While I’ve seen reports, I have not read the indictment. I do, though, believe we need to enact reforms so that Americans have the right to remove cases from Washington, DC to their home districts. Washington, DC is a “swamp” and it is unfair to have to stand trial before a jury that is reflective of the swamp mentality. One of the reasons our country is in decline is the politicization of the rule of law. No more excuses—I will end the weaponization of the federal government.

This statement will probably not be enough to stop his campaign from circling the drain, but it is indicative of the party’s debased state. There is no internal moral compass dissuading the majority of Republicans from electing as president a man who poses a mortal threat to the Republic. Stopping him the first time depended on Republicans exercising what they now recognize was foolhardy confidence that their decency would be rewarded.

If Trump wins reelection, not only will he quash the federal cases against him, any conspirators who joined his scheme will be pardoned and appointed to influential, well-paid positions. Those who stood in his way will fade into obscurity, or perhaps be harassed by the goons Trump installs in his next Justice Department. Even if he loses, the Republicans who stood up to him will have no political future. In a horrible way, Trump’s diagnosis of his vice president was correct: Pence was too honest. All we have to determine now is whether his sacrifice achieved anything.

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Pence Makes It Clear Why It’s Necessary to Prosecute Trump