The Volokh Conspiracy
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The Dangers of Giving Trump Impunity are Far Worse than those of Prosecuting Him
Giving presidents impunity for using force and fraud to try to nullify election results is far worse than any potential risk of prosecuting Trump.
Some criticisms of the indictment of Donald Trump for his efforts to overturn the outcome of the 2020 election turn on specific legal arguments to the effect that Trump may not actually be guilty of the crimes charged. I address some of those issues here and here. But there are also consequentialist concerns to the effect that prosecuting Trump might weaken confidence in the criminal justice system or trigger a slippery slope where other former presidents and high officials get prosecuted. In my view, such concerns are overblown. More importantly, they downplay or ignore the potentially awful consequences of not prosecuting Trump.
Harvard law Prof. Jack Goldsmith expresses slippery slope concerns about the prosecuting Trump in a recent New York Times op ed. He worries that the prosecution will deepen Republicans' already negative view of the Justice Department and "inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government." Josh Blackman agrees, and predicts future GOP administrations will try to prosecute Democratic politicians. He warns the consequences "will likely be terrible."
Maybe. But letting Trump off the hook is likely to be far worse. If Trump - or any president - is granted impunity for using force and fraud to try to stay in power after losing an election, future presidents could well repeat Trump's experiment. Lots of ambitious politicians would love to stay in power indefinitely. And if there are no penalties for trying, why not have at it? Some of those future leaders might even contrive to put together a more effective scheme of election nullification than the ramshackle scheme pursued by Trump.
If one of the reasons for not prosecuting Trump is that he has millions of followers who would be angry or lose confidence in the justice system as a result, that would incentivize future losing presidents to repeat Trump's Big Lie tactics. The more you rile up your supporters, the greater the chance of getting impunity for any crimes you might commit in office! That, in turn, would lead to more delegitimation of political and legal institutions, not less.
It is sometimes argued that Trump's misdeeds should be subject to political accountability, not criminal sanctions. This argument has a number of general flaws, including its neglect of the need for retribution for heinous crimes (merely losing office is not punishment enough), and the problems of polarization and widespread voter ignorance (which may prevent the electorate from assessing the situation correctly and acting on that knowledge). Partisan bias and polarization often lead voters to be excessively tolerant of the misdeeds of their own party's leaders, especially if punishing them means handing a victory to the opposing party.
Exclusive reliance on political accountability is particularly inappropriate in the case of Trump's election-related wrongdoing. The whole point of Trump's crime was in fact to undermine electoral accountability - the very process that is supposed to keep him in check. The threat of losing an election is not much of a deterrent for schemes to overturn elections.
Compared to this danger, the concerns raised by Goldsmith and Blackman are minor. We already have plenty of investigations of the executive by Congress, when the latter is controlled by the opposing party. Some are meritorious, others not. Increasing their number strikes me as not much of a problem. It might even have some good effects if it uncovers more executive wrongdoing.
Politically motivated prosecution is a more serious concern. But if the charges lack merit, powerful politicians have the resources and connections to secure topnotch lawyers who can help them beat the (unjustified) rap. If, on the other hand, they are justified, punishing more politicians may not be a bad thing. There is too much impunity in high places.
I do recognize the danger created by a situation where we have far too many laws on the books, and as a result almost anyone can potentially be charged with something. Democratic and Republican politicians could potentially endlessly prosecute each other for various petty offenses. I suspect, however, mutual deterrence will limit this problem, because members of the political class don't want to end up with mutually assured destruction. Moreover, truly petty prosecutions (e.g. - prosecuting a president for minor tax violations or for using marijuana in violation of federal law) are likely to backfire politically.
In addition, high-ranking politicians can reduce their exposure by being especially careful to avoid illegality. If political leaders start having to lead squeaky-clean lives, I will not shed many tears for them. Alternatively, fear of petty prosecution might even lead political leaders to repeal some of the many dubious criminal laws on the books. If so, that would be a great outcome - and a win for the rule of law.
Finally, the concern that prosecuting Trump will lead his supporters to take a more negative view of the Justice Department and the justice system generally is outweighed by the likely impact on public confidence of giving Trump impunity for his crimes. If the holder of the most powerful office in the land isn't punished for trying to nullify election results through fraud, that cannot but damage public confidence in the legal system among the large majority of Americans who recognize Trump did in fact lose the 2020 election. And if Trump gets off even as relatively low-level January 6 rioters get punished, that is likely to create (justified) perceptions that there is a double standard under which the powerful get more lenient treatment than ordinary citizens.
Perhaps, as Goldsmith and conservative commentator Ramesh Ponnuru argue, it would have been better if Trump had been convicted at his second impeachment trial. I myself advocated conviction, and agree with Ponnuru that the Senate committed a grave error in acquitting Trump.
But the failure of the impeachment process makes it all the more necessary to pursue criminal charges. Indeed, GOP Senate leader Mitch McConnell held out the possibility of criminal prosecution as one justification for his vote to acquit Trump in the impeachment process:
Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.
Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were "still liable to be tried and punished in the ordinary tribunals of justice."
We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.
Time for some "individual accountability" for Trump through the criminal justice system!
In sum, the risks of not prosecuting Trump are far more severe than those of holding him accountable for his election-related crimes.
These considerations may not matter much if you think Trump is legally innocent of the charges against him. But if not, it would be a terrible mistake to grant him impunity from prosecution out of dubious consequentialist concerns. The risks of letting him off the hook are far worse.
