The main argument against prosecuting Donald Trump — or investigating him with an eye toward criminal prosecution — is that it will worsen an already volatile fracture in American society between Republicans and Democrats. If, before an indictment, we could contain the forces of political chaos and social dissolution, the argument goes, then in the aftermath of such a move, we would be at their mercy. American democracy might not survive the stress.
All of this might sound persuasive to a certain, risk-averse cast of mind. But it rests on two assumptions that can’t support the weight that’s been put on them.
The first is the idea that American politics has, with Trump’s departure from the White House, returned to a kind of normalcy. Under this view, a prosecution would be an extreme and irrevocable blow to social peace. But the absence of open conflict is not the same as peace. Voters may have put a relic of the 1990s into the Oval Office, but the status quo of American politics is far from where it was before Trump.
The most important of our new realities is the fact that much of the Republican Party has turned itself against electoral democracy. The Republican nominee for governor in Arizona — Kari Lake — is a 2020 presidential election denier. So, too, are the Republican nominees in Arizona for secretary of state, state attorney general and U.S. Senate. In Pennsylvania, Republican voters overwhelmingly chose the pro-insurrection Doug Mastriano to lead their party’s ticket in November. Overall, Republican voters have nominated election deniers in dozens of races across six swing states, including candidates for top offices in Georgia, Nevada and Wisconsin.
There is also something to learn from the much-obsessed-over fate of Liz Cheney, the arch-conservative representative from Wyoming, who lost her place on the Republican ticket on account of her opposition to the movement to “stop the steal” and her leadership on the House Jan. 6 committee investigating Trump’s attempt to overturn the presidential election to keep himself in office. Cheney is, on every other issue of substance, with the right wing of the Republican Party. But she opposed the insurrection and accepted the results of the 2020 presidential election. It was, for Wyoming voters, a bridge too far.
All of this is to say that we are already in a place where a substantial portion of the country (although much less than half) has aligned itself against the basic principles of American democracy in favor of Trump. And these 2020 deniers aren’t sitting still, either; as these election results show, they are actively working to undermine democracy for the next time Trump is on the ballot.
This fact, alone, makes a mockery of the idea that the ultimate remedy for Trump is to beat him at the ballot box a second time, as if the same supporters who rejected the last election will change course in the face of another defeat. It also makes clear the other weight-bearing problem with the argument against holding Trump accountable, which is that it treats inaction as an apolitical and stability-enhancing move — something that preserves the status quo as opposed to action, which upends it.
But that’s not true. Inaction is as much a political choice as action is, and far from preserving the status quo — or securing some level of social peace — it sets in stone a new world of total impunity for any sufficiently popular politician or member of the political elite.
Now, it is true that political elites in this country are already immune to most meaningful consequences for corruption and lawbreaking. But showing forbearance and magnanimity toward Trump and his allies would take a difficult problem and make it irreparable. If a president can get away with an attempted coup (as well as abscond with classified documents), then there’s nothing he can’t do. He is, for all intents and purposes, above the law.
Among skeptics of prosecution, there appears to be a belief that restraint would create a stable equilibrium between the two parties; that if Democrats decline to pursue Trump, then Republicans will return the favor when they win office again. But this is foolish to the point of delusion. We don’t even have to look to the recent history of Republican politicians using the tools of office to investigate their political opponents. We only have to look to the consequences of giving Trump (or any of his would-be successors) a grant of nearly unaccountable power. Why would he restrain himself in 2025 or beyond? Why wouldn’t he and his allies use the tools of state to target the opposition?
The arguments against prosecuting Trump don’t just ignore or discount the current state of the Republican Party and the actually existing status quo in the United States, they also ignore the crucial fact that this country has experience with exactly this kind of surrender in the face of political criminality.
National politics in the 1870s was consumed with the question of how much to respond to vigilante lawlessness, discrimination and political violence in the postwar South. Northern opponents of federal and congressional intervention made familiar arguments.
If Republicans, The New York Times argued in 1874, “set aside the necessity of direct authority from the Constitution” to pursue their aims in the South and elsewhere, could they then “expect the Democrats, if they should gain the power, to let the Constitution prevent them from helping their ancient and present friends?”
The better approach, The Times said in an earlier editorial, was to let time do its work. “The law has clothed the colored man with all the attributes of citizenship. It has secured him equality before the law, and invested him with the ballot.” But here, wrote the editors, “the province of law will end. All else must be left to the operation of causes more potent than law, and wholly beyond its reach.” His old oppressors in the South, they added, “rest their only hope of party success upon their ability to obtain his goodwill.”
To act affirmatively would create unrest. Instead, the country should let politics and time do their work. The problems would resolve themselves, and Americans would enjoy a measure of social peace as a result.
Of course, that is not what happened. In the face of lawlessness, inaction led to impunity, and impunity led to a successful movement to turn back the clock on progress as far as possible, by any means possible.
Our experience, as Americans, tells us that there is a clear point at which we must act in the face of corruption, lawlessness and contempt for the very foundations of democratic society. The only way out is through. Fear of what Trump and his supports might do cannot and should not stand in the way of what we must do to secure the Constitution from all its enemies, foreign and domestic.
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