“Despite Overwhelming Evidence of Guilt,” ran the title of a recent piece here on Daily Kos, “the DOJ has a tough decision around prosecuting Trump.” And the piece quotes various legal experts supporting the view that it’s a tough choice.
(For example, it quotes Joyce Vance, a former U.S. attorney and NBC News legal analyst: “Prosecuting Trump destabilizes the country more than it puts it upright.”)
Really, have we learned nothing?
Is it not obvious that whatever the dangers involved in prosecuting a former president — We don’t want to become one of those countries where the law is used to destroy political opponents; The people on the right are going to be up in arms — by far the greater danger is that the rule of law will not be upheld even when a President blatantly attacks the very foundations of the Constitution he swore an oath to protect and defend?
Is not the rule of law dangerously weakened, as the whole nation has watched when — again and again — people of power and privilege commit serious crimes and get away with it?
Recall Barack Obama’s decision at the beginning of his Presidency not to go after any of the potential crimes of the previous (W) administration. He announced his intention to “look forward” rather than “backward”— as if investigation and prosecution of crimes could ever be anything but “looking backward.” (We don’t live in that Spielberg Minority Report world, where the focus was on clearly foreseen future crimes.)
Obama, too, was worried about how the other side would respond to looking into such atrocities as the “torture memo,” which laid out a modus operandi where any future President could commit any future crime, and no one could be held accountable. (Can’t hold the memo-writer accountable, that was just an opinion. Can’t hold the torturers or those two told them to torture accountable, because they relied on an OLC opinion.)
Obama wanted to maintain the peace, so he could pull the nation together. He fundamentally misunderstood what he was up against, because even though he was betraying his oath of office (to make sure that the laws are “faithfully executed”) to avoid antagonizing the Republicans, they had already declared war on him.
Lesson learned: the liberals are so afraid of the fight that the Republicans can get away with anything. All of which helped clear the way for someone so unthinkable as Trump to be invested with the powers of the Presidency, which he abused to a degree orders of magnitude beyond Nixon or any other American President.
So Barbara McQuade, another anti-Trump legal authority quoted in that article, worried that “filing criminal charges against Trump in his attempt to subvert the elections ‘will very likely spark civil unrest, and maybe even civil war.’” (To be fair, she does come down on the side that “not charging [Trump] is even worse.”)
The whole Big Lie attack on a free and fair election, supported by the great majority of the Republican base and leaders, already represents a kind of “civil war” — a more fundamental assault on the Constitution than the unilateral decision of the Slave States that they had the right to secede from the Union.
If a battle must be fought, what better ground to fight it on than upholding the rule of law, and defending the Constitution against a conspiracy to seize power against the “will of the people”? Something has arisen on the right — in part because of the chronic weakness with which the Democratic side has opposed it — that truly needs to be fought and defeated.
It now profoundly endangers the very survival of American democracy.
I can think of no more defensible ground to fight that fight than taking that “Overwhelming evidence” of Trump’s guilt, and fulfilling the oath of office that the Attorney General takes by prosecuting a criminal who has committed the most serious of crimes a President can commit.