I have long been opposed to the idea of prosecuting Donald Trump, fearing that such a step would polarize the country and set a dangerous precedent. I worry about the implications of having the current administration go after its predecessor and chief political opponent. But the testimony of former White House aide Cassidy Hutchinson has caused me to rethink that premise and at least consider whether prosecution may be warranted.
Before Hutchinson’s testimony, there was a dearth of public evidence that Trump was actively complicit in the violence on Jan. 6, 2021, as opposed to being recklessly indifferent to the potential for it. But according to Hutchinson, Trump was fully aware that the Jan. 6 mob was well armed yet willfully encouraged it to march on the Capitol.
This portrayal casts a more damning light on the former president’s profound dereliction of duty and, as I see it, may change the calculus Attorney General Merrick Garland will need to make.
When prosecutors are presented with potentially incriminating evidence, there are always two questions: Do we have enough proof to charge crimes? And, should we exercise our discretion to do so?
Here, the answer to the first question seems straightforward. A rational jury could conclude, beyond a reasonable doubt, that Trump aided and abetted the forcible intimidation and assault of government officials, and that he corruptly obstructed a congressional proceeding (namely, the constitutionally required count of electoral votes).
The second question is much tougher. Prosecutorial discretion is unreviewable. It is an executive branch call. The chief executive’s responsibility is to do what is in the best interest of the United States, not merely to seek a proper law enforcement outcome.
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. The past eight years of politically fraught investigations – including criminal and national-security probes of Trump and Hillary Clinton, both major-party presidential nominees – should teach us that the intrusion of prosecutors into electoral politics has a corrupting effect on the democratic process and the Justice Department itself.
The Justice Department should have a higher standard for prosecuting political cases, staying its hand unless there is an offense that is both serious and easy for the public to grasp. That is especially so when the department, which ultimately answers to the president, is investigating the president’s top political rival – who, in this instance, seems poised to seek the presidency again.
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. It would encourage payback: politicized prosecutions once Republicans retake power, as they inevitably will at some point.
Violence is the bright line. It is why those of us opposed to Trump’s prosecution should at least recheck our premises in light of Hutchinson’s testimony. We’re no longer just talking about a president’s irresponsible use of incendiary rhetoric that can be credibly portrayed as constitutionally protected speech.
Hutchinson provided powerful testimony, albeit some of it secondhand, that Trump knew the mob was armed to the teeth. And that, thus aware, he not only exhorted the mob to march on the Capitol, but also wanted to lead the march. He was bitterly angry when his aides and security team thwarted him. Moreover, he not only abdicated his constitutional and moral responsibilities to take action to quell the attack; he willfully exacerbated the peril the rioters posed for the vice president and members of Congress.
Of course, the Biden Justice Department would be better positioned to make the point that violence is a game changer if it were treating the radical left-wing violence of 2020 with the same firm hand it has applied to the Capitol riot. That said, the riot is rightly condemned. If the public becomes convinced that Trump was not just a common demagogue but willfully complicit in fostering a threat of force that foreseeably devolved into the use of force, then the Justice Department would be on firmer footing in exercising its discretion to indict.
To be clear, Hutchinson’s testimony is not a clincher. The public case for indicting Trump has not been made, and it won’t be made by a congressional committee much of the country rightly sees as too partisan – one unabashedly biased side’s theatrical presentation, not a true investigation featuring adversarial hearings, cross-examination and the crystallization of contested issues.
Certainly Congress has a duty to ensure comprehensive political accountability for the atrocious Capitol riot. But unless Trump is broadly and clearly seen as criminally culpable for the violence, his indictment would tear the country apart. I believe a prosecution is apt to do more harm than good. I also know I could be wrong about that. As good judges tell juries: Don’t make up your mind until you’ve heard all the evidence.
Andrew C. McCarthy is a former federal prosecutor and a contributing editor at National Review.
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