No doubt you have noticed the ongoing question of whether and when the U.S. Attorney General, Merrick Garland, will prosecute Donald Trump for alleged crimes he committed in the period leading up to the 2020 election and thereafter. While the House of Representatives Select Committee to
Investigate the January 6 Attack on the United States Capitol has already publicized evidence of presidential crimes, the Attorney General has been silent on the status of investigations into the former president’s conduct regarding his effort to have the election of President Joe Biden overturned, which led to the insurrection at the nation’s capitol on Jan. 6, 2021. Meanwhile, according to a poll released this week, almost 60 percent of Americans believe Trump should be prosecuted for crime in connection with the insurrection.
For what it’s worth, this “delay” in prosecutors’ action on what seems to most of us to be evidence of crimes by the former president represents the norm in many white-collar crime cases in America. That norm comprises steps for powerful white-collar suspects that no traditional street criminal enjoys: steps such as alerting the suspect that he or she is under suspicion; inviting the suspect and his or her lawyers to conference with the prosecutors regarding the potential charges they may bring against the suspect; negotiating with the suspect about how to resolve the case, including potential plea agreements, before taking the suspect into custody, if they do so; and allowing the suspect to surrender to the authorities rather than suffer the indignity of a public arrest with its ‘perp walk.’
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The former president is experiencing just this treatment. In his case, we have heard very much about the potential challenges of proving in court his intent to commit specific crimes as the reason not to rush into prosecution. His guilt must be proven beyond a reasonable doubt, a high standard for conviction. But notice what the standard is for arresting individuals suspected of crimes: law enforcement must only have probable cause to believe the suspect has committed a crime to arrest him or her, a very much lower standard. Common street offenders are routinely arrested on this basis. An underlying assumption is that not arresting such suspects–instead leaving them on the street–creates an unacceptable risk of their continuing to commit more crimes.
But why not arrest the former president? On the record he would seem the perfect case for arrest. As the House Select Committee has already clearly demonstrated, there is not only probable cause for arrest, there is also clear evidence of crimes and other offenses that Trump has committed, including efforts to corrupt the U.S. Department of Justice itself. And there is little doubt that he is a repeat offender, as numerous reports on his business and political careers have demonstrated. Among other things, as I noted in an essay three years ago, in his detailed two-volume report on Russian interference in the 2016 presidential election, Special Counsel Robert Mueller identified a number of instances in which it appeared clearly that the then-president had committed federal obstruction of justice crimes.
As important as this record is, even more important is that he clearly presents ongoing dangers to American citizens, to say nothing of the nation’s democratic institutions. This Trump does in continuing today to spread his lies that the 2020 election had been stolen from him, and thereby fomenting threats and potential violence against civil servants who carried out their election duties properly. Should not this be stopped, now, via arrest? Then settle the details of the indictment for Trump’s alleged crimes thereafter?
Of course that is not going to happen. Not only is he a powerful suspect, he is also the former president, one whom 42.5 percent of Americans still view favorably according to recent polls, and who is currently running neck-and-neck with Joe Biden in polls on which of them respondents favor for election in 2024. And in the nation’s history no president has ever been indicted for crimes.
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Here is what we can count on. Despite having announced nothing, Merrick Garland’s Justice Department is investigating the possible criminality of Trump and his top allies in the illegal attempts to overturn the 2020 election.  This was very strongly suggested this week by federal agents’ raid of the home of former Department of Justice official Jeffrey Clark, whom the former president had attempted to install as Attorney General at the end of 2021 to help him overturn the election results. Clark had expressed his willingness to corrupt the Department in this way, but Trump’s effort to appoint him was thwarted by the Department’s leadership. Coincidentally, this leadership testified before the Select Committee on the very day of the government’s raid of Clark’s home. A federal judge had issued a warrant for the raid, indicating that the court had been persuaded that there was a substantial likelihood that evidence of criminal activity would be found there.
Will his Department’s investigation end in the indictment of the former president? As fine a long-serving public servant in federal law enforcement as Robert Mueller, in his 2019 report on Russian interference in the 2016 election, did blink in the face of such a question. He hesitated to say that then-President Trump had committed the crimes of obstruction that the report clearly described. Instead, he said merely that the Report ‘does . . . not exonerate him’ of crimes.
Still, I believe that Attorney General Garland will be moved by the force of the amounting evidence and the historic weight of the moment to indict Donald Trump and his associates for crimes against the nation, whatever the specific charges. He understands how divisive such a move will be. But, as thoughtful and deliberate as he is known to be in his legal work, he also recognizes the much greater harm to the nation and democracy that his failure to indict would bring. He will act.
May it be!!!!!!!!!!!!
I certainly want to see this happen! And it is good to read your explanation about why DOJ has been moving so slowly. But they ARE moving!
I worry, though, about some of the possible consequences of an indictment and trial. Not only would that be divisive, but it would also give Republicans and Fox News great ammunition for a narrative about another “witch hunt.”
And then if the prosecution fails in some way, Trump and his allies will have a huge victory.
The other thing I want to see, beyond seeing Trump brought to justice, is just to see him go away, to have us stop giving him all of this attention. An indictment and a trial would just put a huge spotlight on him — which he would love.
But I guess the bottom line for me is that I would take great satisfaction in seeing him indicted, brought to trial, forced to defend himself and hopefully testify — and, ultimately, be convicted!