It may be gratifying to witness the special counsel, Jack Smith, indict Donald Trump for his reprehensible and potentially criminal actions during the 2020 presidential election. However, the decision to prosecute, though possibly justified, presents a tragic dilemma that will only compound the damages caused by Trump’s numerous transgressions.
Smith’s indictment paints a compelling picture against Trump, but legally speaking, it may not be airtight. The case involves the application of novel interpretations of three criminal laws and raises complex questions regarding Trump’s intent, freedom of speech, and the limits of presidential power. If the prosecution fails, especially if it concludes after a general election where Trump loses, it will be deemed a historically disastrous outcome.
Even if the prosecution successfully convicts Trump, the repercussions for the legal and political systems will be significant. The fact that this indictment comes from the Biden administration, while Trump maintains a strong lead in the polls for the Republican Party nomination and is in a tight race with Biden, raises suspicions of political motives. The Biden Justice Department reportedly delayed the investigation into Trump for a year and then hurriedly indicted him well into the GOP primary season. This timing, regardless of partisanship, appears questionable and carries potent political implications. If Biden’s campaign or its proxies use this indictment as a weapon against Trump, should he be nominated, it will only further taint the prosecution’s integrity.
These circumstances unfold against the backdrop of perceived unfairness in the Justice Department’s previous investigation of Trump’s connections to Russia in the 2016 general election. The department’s handling of anti-Trump texts by the lead FBI investigator, improper disclosures of FBI documents by a former FBI director, and misconduct by FBI and Justice Department officials in obtaining permission for surveillance add to the sense of bias. The discredited Steele dossier, which played a significant role in the Russia investigation, originated from opposition research conducted by the Democratic National Committee and Hillary Clinton’s campaign.
Furthermore, the perception of unfair treatment in the department’s investigation of Hunter Biden, where the department violated the principle of avoiding any appearance of impropriety in politically sensitive cases, has fueled skepticism. Credible whistle-blowers have alleged misconduct and bias in the investigation, despite denials from the Trump-appointed prosecutor. The plea arrangement with Hunter Biden fell apart under scrutiny, raising suspicions of a favorable deal, following simple questions by a federal judge.
These points provide crucial context to how a large portion of the country will judge the legitimacy of the Justice Department’s prosecution of Trump for election fraud. They create an environment where political bias may be seen to influence the outcome. The Trump camp will undoubtedly exploit and exaggerate these circumstances, amplifying their impact.
As a result, regardless of the Justice Department’s pure motivations, it will likely emerge from this prosecution as a heavily politicized institution in the eyes of many Americans. The department’s reputation has been in decline due to past high-profile mistakes and attacks from Trump and his supporters. The consequences of this election fraud prosecution will worsen its predicament due to its enormity, the stain of past actions, and the potentially favorable outcome for Biden.
This prosecution may have far-reaching consequences beyond the department, affecting our politics and the rule of law. It could inspire more aggressive investigations into presidential actions by future Congresses and opposition administrations, undermining effective governance.
Furthermore, it may exacerbate the criminalization of politics. The indictment accuses Trump of lying and manipulating people and institutions to shape the law and politics in his favor. While exaggerations and shaded truths are commonplace in Washington, using special counsels, indictments, and grand juries to dispute and attack opponents will likely become the new norm.
Some of these consequences may have occurred irrespective of this prosecution due to our polarized political climate, Trump’s provocations, and the questionable handling of his earlier cases in New York State. However, the greatest danger lies in actions taken by a federal government led by Trump’s political adversary.
In contrast to the election fraud case, the classified documents case is less controversial and less tied to high politics. It pertains to actions taken by Trump after leaving office, does not implicate First Amendment concerns, and involves statutes that typically address mishandling of sensitive government information.
Smith had the option to delay the indictment until after the election, but he likely believed that safeguarding democratic institutions and upholding the rule of law in the face of Trump’s attacks outweighed any potential downsides. Perhaps he considered the downsides irrelevant with the belief that justice must prevail regardless of the consequences.
These are legitimate considerations. However, regardless of Smith’s calculations, his decision may be viewed as a mistake if, as is possible, American democracy and the rule of law suffer as a result.
The Watergate scandal falsely led us to believe that independent counsels could restore the rule of law and bring closure to national abuses by senior officials. However, subsequent experiences, including the discredited independent counsel era and the unsatisfactory Mueller investigation, have proven otherwise. Today, the national division is more corrosive than ever, making it even more challenging to achieve consensus.
Regrettably, in February 2021, the Senate missed an opportunity to convict Trump and bar him from future office, despite his rightful impeachment by the House of Representatives for his election misconduct. If that had occurred, Attorney General Merrick Garland may have decided against appointing a special counsel for this challenging case. But here we are.
None of these considerations absolve Trump, who bears ultimate responsibility for this colossal mess. The difficult question is whether pursuing criminal charges to address his shameful acts is worth the immense costs to the country. Unfortunately, the nation must endure these costs to find an answer.
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