Into the wilderness

We are pushing far into uncharted territory. The criminal prosecution of a former president of the United States has been contemplated before, but it never happened. Now, it has. Former president Donald J. Trump has already been indicted on multiple criminal counts handed down in New York and Florida, and on Tuesday Trump was indicted by a federal grand jury in Washington on multiple felony counts including obstruction and conspiracy. A prosecutor in Georgia is expected to file criminal charges against the former president within three weeks. Together, these charges amount to a legal avalanche.

What are we to make of this? President Theodore Roosevelt once affirmed: “No man is above the law, and no man is below it.” In moral terms, a former president should be neither above nor below the law. It would be moral insanity to argue that the criminal prosecution of a former president could never be justified. At the same time, no one should underestimate the danger of the territory into which the nation is now marching—or being marched.

Some of us are old enough to remember that this nation faced related questions in the aftermath of the resignation of President Richard M. Nixon. Nixon’s resignation came only when it was clear that he faced certain impeachment in the House of Representatives, certain conviction by the Senate, and forced removal from office—followed by criminal prosecution on charges of—wait for it—obstruction and conspiracy.

All this weighed heavily on America’s “accidental president,” Gerald Ford, who eventually pardoned Nixon and spared the former president and the nation the ordeal of a trial. Was Ford’s pardon right or wrong? That verdict is still out, but Ford’s concern had less to do with the former president’s legal status and much more to do with other overarching concerns. How exactly could a trial of a former president be conducted? Would the trial be a demonstration of the rule of law or a platform for political grandstanding? Would a trial be more likely to result in a conviction or an acquittal that would leave Nixon to claim vindication? Questions of executive privilege and raw presidential politics might leave a jury (and the entire judicial system) uncertain of the law.

But the comparison with Nixon has its limits. Donald Trump is not merely a former president. He is running for office even now and is the frontrunner for the Republican nomination in 2024.

This week’s indictment was handed down in Washington, and thus hearings and the trial will be held in the U.S. District Court for the District of Columbia, which could be a game-changer in itself. A jury in “the District” is considered far more likely to convict Trump than a jury in Florida.

But the indictment handed down this week involves charges that a prosecutor will almost certainly find difficult to prove in court. The obstruction and conspiracy charges are based on inventive legal arguments coming from special counsel Jack Smith who, as the editors of National Review express, “is endeavoring to criminalize protected speech and flimsy legal theories.” This is a very dangerous road for the nation to take.

Trump’s enemies are elated. Former U.S. Attorney Harry Litman declared the indictment will begin “the most important case in the nation’s history.” Well, this nation has a very long history. UCLA law professor Richard L. Hasen described Jack Smith’s latest charges as “perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.” Wow. Will it look that way in a few years? A few months?

I must be candid. I would prefer to see neither of the 2020 presidential candidates on the ballot in 2024. For different reasons, I consider both of the 2020 nominees, former president Donald Trump and President Joe Biden, to be morally disqualified from high office. Donald Trump’s behavior after the election was reprehensible. But were those actions criminal? Would a conviction on these counts stand scrutiny and withstand appeals? Where does all of this leave the rule of law and confidence in our legal system?

A look at the text of the indictment raises even more questions. To what degree has Smith confused legally protected free speech rights and political activity, on the one hand, with criminal acts that can be proved in court, on the other? Or, to put it another way, Donald Trump is, thus far, sui generis in American politics—in a category all his own—but lying and manipulating and conspiring to gain political goals is, let’s be honest, pretty much a bipartisan enterprise in politics, and especially in the Oval Office. This does not justify any moral wrong, but there is a huge difference between moral wrong and criminal wrongdoing. Ask Bill Clinton about that.

The indictment relies on the legal argument that the former president lied and then acted on those lies to interfere and reverse a crucial exercise of our constitutional system—a presidential election and its certification. Donald Trump has pretty much told us that he interfered and sought to change its result. But the fact is that he failed and the election was certified, just hours after an insurrection and raid on the Capitol.

Everything does feel different given the fact that Donald Trump is running for the presidency once again, and running strongly so far. But the bare fact is President Biden is running for the same office as well. Is this some kind of cruel sequel? There will be absolutely no way for the political and the legal to be clearly separated throughout this process. Furthermore, the American people are so divided that one side sees this indictment as proof that the rule of law is working and the other side sees the prosecution as yet another exercise of politics by other means.

There is one essential rule when it comes to entering uncharted territory. You had better make sure you know a way out. At this point, the nation is being pushed into dangerous territory and there is no clear map forward.