The High Cost of Letting People Off the Hook

What happens when crimes go unpunished.

It’s been a blockbuster week, from the overturning of Roe (imagine if we hadn’t been warned) to the explosive testimony of Cassidy Hutchinson, former aide to Trump’s fourth and final chief of staff Mark Meadows. While seemingly distinct, those two tentpoles are actually holding up the same canvas, which is to say, the ongoing Republican attempt to lockdown permanent minoritarian control of life in these United States.

The GOP is happy to do that through a violent attempt to overturn an election—an act that a large chunk of its current crop of political candidates continues to both defend and deny—or through a quasi-legal exploitation of structural weaknesses in our democratic system that give a determined neo-fascist insurgency the ability to hold the rest of the country hostage.

Lest we forget: on abortion, on gun control, on the environment, on gerrymandering, on the increasing co-mingling of church and state—to name four right wing victories from just this week alone—the GOP continues to dictate policy, despite the fact that the Democratic Party controls the Presidency, the House and the Senate….for now.

(Somehow, when the roles are reversed, the Democrats are unable to pull off the same trick. Discuss.)   

I have written at length about the urgent need to push back against this GOP crusade for permanent control of American governance before it’s too late. It may already be. But a major part of that effort is the quest for accountability for January 6th. Common sense tells us that if we fail on that front, if there are no significant consequences for an attack on the US Capitol and an attempt to murder the Vice President and sitting members of Congress by way of stealing a presidential election, it will only embolden the perpetrators of those acts going forward. As the popular meme goes, a failed coup with no repercussions is just a dry run.

And the necessary consequences almost certainly include criminal prosecution of Donald Trump, among others, for those crimes. Since the Republican-controlled Senate refused to convict Trump on those counts during his second impeachment, what other punishment remains available to us? Indeed, in passing the buck of responsibility back in February 2021, a characteristically weaselly Mitch McConnell explicitly said as much in declining to find Trump guilty. “He didn’t get away with anything yet,” quoth Moscow Mitch, overtly suggesting that Trump could still be held to account in the criminal and civil court systems.

You don’t hear many Republicans saying that now, except Cheney and Kinzinger. Certainly not McConnell.

Instead, predictably, a chorus of conservative voices has arisen insisting that no matter how grave his sins, prosecuting a former US president is a terrible precedent—so terrible that it outweighs even the need for justice. Wouldn’t it be better just to let him get away with it?

As it happens, we don’t have to look too far back in our history for a case study in that exact dilemma.

 PARDON ME BOY, IS THAT THE CHATTANOOGA CHOO-CHOO?

Gerald Ford always said that he pardoned Richard Nixon because he felt that the country had been through such angst as a result of Watergate that a criminal prosecution of his predecessor would only further traumatize the nation and do more harm than good.

He may well have genuinely believed that. But at the same time, it may also have been a kind of willful blindness that conveniently allowed him to let a fellow Republican off the hook, and spare further damage not to the country, but to the GOP. That’s sure how it looked. (Ford also always denied that he was named to the vice presidency, succeeding Spiro Agnew, who had been forced to resign in a separate corruption scandal, in a quid pro quo for that eventual pardon.)

In February 2021, in the immediate wake of the January 6th Insurrection, I wrote in these pages:

Ford’s logic that a trial would only extend America’s suffering and be even more divisive was ludicrous. Try it the next time you’re on trial: “Your Honor, it does appear that I robbed that bank. Yes, there’s video of me sticking a six-gun in the teller’s face. But wouldn’t putting me on trial just cause everyone more grief and suffering?”

I humbly submit that far from “sparing the nation more trauma,” “healing the country,” allowing us to “move on” from our “long national nightmare,” Ford’s excusal of Nixon’s crimes did grievous harm. It legitimized the hustle. It told America that you were a sucker if you played by the rules. It said that if you were rich enough and powerful enough the laws didn’t apply to you—that there was one set for those folks and another for the rest of us in the hoi polloi. It was a giant fuck you to ordinary Americans who were expected to obey the law and could bet their bottom dollar that Johnny Law would come after them if they didn’t.

(In fact, it is my view that, in addition to Watergate, Nixon could well have been impeached for violations of the Logan Act and other war crimes in his prosecution of US involvement in Vietnam, a conflict he unnecessarily prolonged—at the cost of some 21,000 American lives and hundreds of thousands of Vietnamese—for his own partisan political gain.)

In the years that followed, many journalists confronted Ford over the pardon, and specifically the fact that, after receiving it, Richard Nixon never once admitted any guilt. On the contrary: asked about the illegal things he had done, he famously told David Frost, on camera, “When the president does it, it’s not illegal.”

Ford grew so used to these questions, and so defensive, that he began carrying around a dogeared copy of the Supreme Court’s 1915 decision in Burdick v. United States, in which the Court ruled that accepting a pardon was by definition "an admission of guilt.” Ford was even known to pull the clipping out of his wallet and show it to those interlocutors (Bob Woodward among them).

Well, that’s all fine and good. But it does not make up for the fact that Richard Nixon walked off into a well-feathered retirement distinguished by expensive homes in San Clemente and Upper Saddle River, and lucrative book deals, and banquets thrown in his honor by his plutocratic admirers, instead of an orange jumpsuit, a metal bunk bed, and a job making license plates. And he never once admitted his crimes.

The good news is, despite the pardon, almost everyone today thinks of Nixon as a miserable crook who was driven out of office in disgrace. Yes, there are some archconservative deadenders who still admire the bastard, almost out of sheer transgressive contrariness it would seem. For that matter, there are some cretins who still admire Sen. Joe McCarthy, too, and even worse monsters. But the overwhelming consensus on Nixon, and history’s verdict on him, is set, and it ain’t kind.

(Ironically, his reputation has risen a little of late thanks to comparison with Trump, whose grotesquerie makes Tricky Dick look like a saint.)

But that is not to say that Ford’s pardon came without a price.  

If Nixon had been prosecuted and punished for his crimes, how might it have altered the trajectory of the post-Watergate GOP? We can never know. But just six years after Nixon departed the South Lawn in Marine One, an even more right wing Republican won the presidency, ushering in a conservative counterrevolution that sought to roll America back to the pre-New Deal era, if not the Puritan one. Over the course of its forty year run (and counting), that movement has gone a long way to achieving that goal. A patient, methodical plan to take control of the judicial branch has been a huge component of it, and we witnessed some of its repercussions even this past week.

The butterfly effect renders it impossible to say something like, “Without Nixon, there would have been no Trump.” But I know this much: Nixon getting off scot free didn’t help.

Absent prosecution, the GOP was able to portray Nixon was as an unfortunate aberration, a power-mad paranoid who brough shame upon Republicanism, rather than the natural son of a party that gave us the Great Depression, McCarthyism, and John Birch. Since then, the GOP has carried on with its shameless grift of the American people, and even been rewarded for its efforts.

And that party has descended only further into the depths since then.

WHAT’S GOOD FOR REPUBLICANS IS GOOD FOR THE COUNTRY

It is little wonder that Trump’s apologists are making the same Ford-like argument now about the risks of prosecuting a former head of state. We should give those arguments all the credibility that Trump supporters deserve when they talk about integrity and principle.

After Ms. Hutchinson’s testimony, a number of esteemed legal analysts across the ideological board are now convinced that Trump’s criminal exposure is severe, including many on the conservative side, from Sol Wisenberg, a former deputy to special counsel Ken Starr in the Clinton impeachment, to Commentary’s John Podhoretz, to former National Review editor David French. While acknowledging how much uncertainty remains, Alan Rozenshtein, a former Justice Department official and now a professor at the University of Minnesota Law School, said, "I have gone from Trump is less than likely to be charged to he is more than likely to be charged."

More to the point, the magnitude of Trump’s crimes, and therefore the danger of letting him get away with them, is exponentially greater than Nixon’s. "We have never seen anything like this in this country,” said former DemocraticSenator Doug Jones of Alabama, himself a former prosecutor, referring to the Big Lie and the Insurrection. “Watergate pales in comparison.”

The charge of conspiracy to defraud the US is an easier case to make than incitement to violence, although both cases are plenty strong—likely slam dunks, in fact, against anyone other than a man who was the sitting president when he committed them. (In ordering Trump to turn documents over to the January 6th committee, Federal Judge David Carter has already ruled that it's "more likely than not" Trump committed both of those felonies. Which is not the same as a conviction, but also not cause for high-fiving in the halls of Mar-a-Lago.)

Yet still the right wing’s legal front is trotting out the tired old “bad for the country” excuse.

Give me a fucking break. These are the same people that wanted to lock Hillary Clinton up over some mishandled emails.

In The Atlantic, the consistently brilliant Adam Serwer reminds us that Republicans disingenuously trotted out this “too traumatic” rationalization during Trump’s second impeachment, and over this same offense:

Republicans, including Senator Marco Rubio of Florida, insisted that seeking accountability for an attempted coup would be “incredibly divisive,” and was therefore not worth doing. “The notion that we’re going to spend a week or two weeks on a trial on somebody who’s not even in office—it sounds to me like a waste of time,” Rubio told Politico in 2021.

The Week reports that even Ty Cobb, Trump's top legal adviser in the Mueller probe and his lead lawyer during his first impeachment trial, has said that if what his old boss did on January 6th “isn't insurrection, I don't know what is." And yet, Cobb also told CNN that "I am not convinced prosecuting Trump is in the best interests of the country in the long term."  Which is exactly what you would expect a Trump supporter to say.

Andrew McCarthy, a former federal prosecutor who is now a contributing editor at the pro-Trump National Review, recently published an opinion piece in the Washington Post that embodied this scam perfectly. In McCarthy’s view, prosecuting Trump “would polarize the country and set a dangerous precedent (in) having the current administration go after its predecessor and chief political opponent.”

To be sure, no one is above the law, even the president; but neither do we prosecute every provable crime. Other considerations often apply, such as preserving domestic tranquility and institutional integrity.

Oh yes: “domestic tranquility and institutional integrity.” Two things that immediately leap to mind when one thinks of Donald Trump.

McCarthy’s cred plummets further as he goes on to equate the Mueller and Benghazi probes as examples of “politically fraught investigations” proving that the “intrusion of prosecutors into electoral politics has a corrupting effect on the democratic process and the Justice Department itself.” Such an assertion is laughable on its face, but also betrays McCarthy’s howling bias. (He goes on to give us other examples of that bias, like his repetition of the Fox News gaslighting that the January 6th committee is partisan—after Republicans blocked an independent commission, and pulled all their loyalist members of this one; and the never-ending attempt to equate January 6th with the protests in the wake of George Floyd’s murder.) Perversely, he also claims that Trump’s apparent desire to seek the presidency again should be a factor mitigating against the DOJ charging him.

But it gets worse. Even as he acknowledges the power of Hutchinson’s testimony, McCarthy ultimately dismisses all the evidence against Trump as much ado about nothing, since—wait for it—a significant part of the country is cool with what he did:

There should be no place in political cases for charges involving vague offenses based on abstruse legal theories—such as an obstruction charge based on Trump’s promotion of the bogus theory seeking to derail Congress’s counting of state-certified electoral votes.

If there is not a public consensus, cutting across ideological and partisan lines, that Trump has committed grave crimes deserving of prosecution and likely imprisonment, an indictment would be perceived as invidiously selective prosecution by much of our deeply divided country.

In other words, since 30% of Americans believe the Big Lie and think Trump actually won the 2020 election, and was therefore justified in trying to have his own vice president murdered and the electoral votes thrown out, we best not punish him for those crimes.

I don’t know about you, but I am REALLY tired of the Republican Party talking to us like we are the biggest suckers who ever walked the Earth. But if we let them get away with this bullshit, the way we did in 1974, we will be proving them right.

THE ONLY THING WORSE THAN PROSECUTING

No one is disputing the enormity of the decision that faces Merrick Garland. Duke University criminal law professor Samuel Buell told the Associated Press that “It will be one of the hardest issues that any US attorney general has ever confronted."

However, as the Washington Post’s Eugene Robinson wrote, echoing a great many others, “It will set a disturbing precedent if Attorney General Merrick Garland prosecutes former president Donald Trump for alleged crimes. But I believe it will set a worse precedent if Garland doesn’t.”

It’s true that having an incoming president try to put the previous one in prison is a favorite trick of banana republics, but it’s hardly unprecedented, even in the most stable and advanced Western democracies. Ask Silvio Berlusconi, the proto-Trump Italian prime minister of the Nineties and Ohs who in 2013 was convicted of tax fraud by an Italian court, or Nikolas Sarkozy, the former French president who just last year was convicted of two counts of corruption by a French one. (Berlusconi got four years, three suspended, and served the other under house arrest, doing community service. Sarkozy got a year of house arrest for one conviction and three years for the other, two suspended and one in prison, which he is still appealing.)

It’s also true that, because of the partisan divide, a prosecution of Trump by the Biden administration’s DOJ would be even more fraught than a red-on-red prosecution of Nixon by Ford’s. Ford would not have been accused of simply trying to destroy the leader of the opposing party, as Biden inevitably will be. In that sense, as I also wrote in early 2021, “Ford missed a tremendous opportunity to reinforce the rule of law (and) set an important example by insisting Nixon answer for his crimes, rather than granting him a get-out-of-jail-free card.”

But no sane country would let a high-powered group of its citizens attempt a violent coup d’état—led by a deposed head of state no less—and let them off with no consequences. Unless that country was keen to have them do it again.

Adam Serwer again:

(M)ake no mistake: If those who collaborated with Trump’s attack on American democracy escape accountability, the calculus of high-ranking administration officials next time will be that there is a greater price to pay for opposing a coup than supporting one.

SHRUGGING OUR WAY TO AUTOCRACY

Even if the January 6th hearings do not bring about a criminal prosecution of Donald Trump by the DOJ, they have clearly damaged him severely. (He sure thinks so; check out his Truth Social feed.) According to a Politico-Morning Consult poll taken shortly after Ms. Hutchinson’s testimony, 66% of Americans thought Trump’s effort to overturn the last presidential election’s results was a crime and he should be prosecuted for it. Only 19% said it was not a crime while 8% thought it was a crime but Trump should not be prosecuted.

(Of course that still leaves roughly a third of our countrymen who believe the Big Lie in some form or another, which is terrifying. But the less said about them the better.)

But have the hearings damaged him enough to keep him from getting the GOP nomination next summer? Maybe, maybe not. Anyone who can’t imagine the hearings backfiring, let alone a prosecution, and Trump weaponizing the perpetual grievance machine that is his base yet again and riding it to victory in 2024 even while under indictment—or even after a conviction—has not been paying attention.

Or maybe the hearings will indeed damage him enough to end his political career at last. And then President Ron DeSantis will pardon him.

For the real danger is not that Republican voters won’t accept that Trump tried to steal and election, and was even willing to use violence to do so. The real danger is that they don’t care.

In The Bulwark, the always insightful Charlie Sykes writes:

We know that the nation can survive insurrections and even attempts at obstruction of justice. But can it survive a shrug?

Polls continue to show that the majority of Republican voters still believe the Big Lie, and support Trump. So what happens if one of the nation’s two dominant political parties decides that it doesn’t care? And is rewarded by the voters for its cynicism and moral nihilism?

Why? Because the lies don’t matter. Only the outcome counts.

The Big Lie is the pretext for the refusal to accept the peaceful transfer of power to political opponents who are seen as evil and dangerous.

A subtext of right-wing politics now is that the other side simply cannot be allowed to win. They hate America, they hate God, and they will destroy everything you hold dear.

It’s the Flight 93 election forever. It’s Jan. 6th . . . forever.

When that is the ethos of the Republican Party, anything and everything can be justified in the name of its self-interest, including the use of violence against fellow Americans, including overturning an election, including seizing power of the electoral process full stop.

On that front, while you're still digesting Dobbs, get ready to remember the name Moore v. Harper, which will go down in infamy. The Supreme Court has agreed to hear this case, involving the so-called “independent state legislature” doctrine, and will surely deliver a 6-3 decision that paves the way for Republican state legislatures (they control 30 of 50, as of this writing) to disregard the will of the people and the popular vote and send Republican electors to the Electoral College on no authority but their own.

In other words, exactly what Trump and his crime syndicate wanted, retroactively, in 2020. No Capitol-storming necessary.

Heather Cox Richardson writes that retired Judge Michael Luttig, a highly esteemed conservative icon who gave searing live testimony to the Jan. 6 committee, "has been trying for months to sound the alarm that this doctrine is a blueprint for Republicans to steal the 2024 election.

In April, before the court agreed to take on the Moore v. Harper case, (Luttig) wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress' own power to reject state electoral votes and decide the presidency."

And what are the odds that the 6-3 far right wing majority on the Supreme Court will reject that doctrine, which is tailor-made to deliver electoral victories to the GOP in perpetuity?

That’s a rhetorical question, folks.

IT COULDN’T BE SIMPLER

It has by now become wearying to say that the Insurrection did not end on January 6, 2021 but is still going on, in the multipronged Republican attempt to hijack the electoral process and institute itself in permanent, countermajoritarian rule.

Donald Trump must be held criminally accountable for his actions or we will be dooming ourselves to the success of that effort. Even that may not be enough, but without it, the Republicans will surely achieve their insidious goal.

So while Trump’s apologists continue to trot out their tired, old Nixonian misdirection about letting criminal presidents skate “for the good of the country”  let’s heed the words of Jan. 6th committee member Rep. Adam Kinzinger (R-Ill.), speaking to Stephen Colbert on “The Late Show”:

We never want to get in a position where we're just prosecuting the last administration—that's another thing you see in failed democracies—but when you try to overthrow the will of the people, and you try a coup in the United States government, you have to pay for that. Period.

Mic drop.

********

Photo: Dick and Jerry, laughing all the way into ignominy.