Trump lied about election fraud, but that’s not a crime, it’s free speech.
And while he’s engaged in shady business practices and dodged taxes, many Americans don’t see those actions as real crimes, just “smart business” — and hating paying taxes as much as they do.
His real crimes, if any were committed, involve his attempt to steal power.
Former Harvard law professor Laurence Tribe argues Trump is “demonstrably guilty” of criminal acts related to January 6, and has predicted he’ll be indicted (see story here). He’s in a better position to assess and guess than most of us.
A Newsweek article here attempts to guess whether he’ll actually do prison time. For that to happen, he has to be charged or indicted, convicted by a judge or jury, and then get a sentence that includes time behind bars.
People have gone to prison over January 6, and many say they acted upon Trump’s summons. Mounting evidence points to Trump as the central figure in the insurrection.
If there are to be criminal proceedings against Trump himself, the mostly likely ones right now are federal charges for his role in the Capitol attack, and both federal and state charges arising from pressuring various officials to overturn the 2020 election, Newsweek says. For details, go to the article.
“Getting a federal conviction will mean convincing a jury … that Trump knew his claims of election fraud were phony, and that either he was intentionally trying to defraud the government through alternate slates of electors, or he was trying to get a mob to commit serious acts of violence,” Newsweek says.
Much of the House committee’s evidence is hearsay, which isn’t admissible in court, but “[r]egardless of how the evidence piles up, U.S. Attorney General Merrick Garland has compelling reasons to direct Department of Justice prosecutors to leave Trump alone.” It would take years, and if Trump is elected again, he’d fire Garland and possibly even pardon himself.
And there’s retaliation to consider. “It’s frightening to think about what Republicans will do when they’re in power if Garland goes after Trump,” a UCLA law professor says. That might even include “whipped up charges” against Obama.
There’s also the risk of an acquittal. “Prosecuting and losing is a worst-case scenario. It will vindicate Trump’s claims of a witch hunt. Garland understands that danger,” and won’t risk a prosecution unless he has evidence that guarantees conviction. Such concerns probably were behind the Manhattan D.A.’s reluctance to prosecute Trump for his business and tax avoidance schemes, Newsweek believes.
And if he was convicted, he’d appeal, and “it’s a good bet” that a “very partisan” Supreme Court stacked with his appointees would decide his ultimate fate. The UCLA professor says, “The majority has shown an asymmetric willingness to help Republicans on election issues, and I don’t have any confidence they wouldn’t do it in this situation.” It would be easy; simply extend a sitting president’s immunity from prosecution (based on constitutional theory) to former presidents for acts committed while in office.
And if the Supreme Court didn’t play ball, Trump might have “another ace up his sleeve: A claim that he had secretly pardoned himself …. As it turns out, there’s no formal requirement that presidential pardons be recorded in any particular way,” which means it needn’t have been in writing, and a claim that he verbally pardoned himself conceivably might hold up against challenge.
But let’s say all those hurdles are overcome. The arguments for prosecuting Trump are stated in the Newsweek article, and I won’t go into them here. “Should Trump face charges, get convicted, lose all appeals and fail to produce a pardon, he would then face sentencing.” In which case, “It’s easy to imagine that a jury or judge, reluctant to produce the spectacle of a former president in a prison jumpsuit, might be tempted to hand out a light sentence.” But, “[g]iven the seriousness of the crimes Trump would be charged with—they carry sentences of up to 20 years—it is more likely that conviction will lead to an actual prison sentence of two or more years,” which he likely would spend in protective custody in a medium-security federal prison, Newsweek says.
Their article notes that one way Trump could keep himself busy while in prison is by “running for president.” Nothing prevents it. Eugene Debs did so in 1920. That, Newsweek says, might tempt Biden or his successor to offer Trump a deal: Clemency conditioned on never running for office again.
The Newsweek article gives only passing mention to the potential for state charges against Trump, which are most likely to take the form of an indictment arising from Atlanta D.A. Fani Willis’ investigation of Trump’s attempt to pressure Georgia secretary of state Brad Raffensberger to tamper with that state’s election results. Given the many obstacles to a federal prosecution, I’ve long thought this is the most promising avenue for holding Trump accountable for his attack on our democracy. But at this point that, too, is very much a bird in the bush.
What seems more likely is that many of those who aided and abetted Trump’s illegitimate attempt to remain in office will face serious consequences. Run-of-the-mill Capitol rioters are getting relatively light punishments, but those responsible for violence and/or at the heart of the insurrection face years in prison. Key figures close to Trump, many of them lawyers — people like Rudy Giuliani — could face prosecution and prison. Some of those lawyers have already been sanctioned by courts, and disciplinary complaints have been filed against several that could lead to losing their licenses to practice law.
Even if nothing happens to Trump, holding those around him accountable might prevent any future president from getting the help and support he would need to carry out a similar insurrection or coup attempt.
There’s something grating, though, about the notion that a president is somehow above the law, when nobody else is. That almost makes him a king, but our nation was founded upon throwing off monarchy, and rejecting all its trappings in the formation of our new republic, and a strong streak of egalitarianism runs through the American psyche, collectively and individually. That alone argues for prosecuting Trump despite the risks and uncertain outcome.
Republicans have already promised to retaliate for the Jan. 6 committee’s investigation. I expect no civic responsibility from them. The GOP has already ceased to be a responsible institution in American political life. Their policies are determinedly anti-democratic, and many of their supporters are vulgar, violent, and delusional. These days, I think of the Republican Party as a trash can for America’s disreputable social elements, and it’s up to the rest of us to make this country work despite them.
I’m for prosecuting Trump if the evidence sufficiently supports a criminal case against him, just like any other person. Nothing he’s ever done entitles him to any special favors from our criminal justice system. I don’t care if his supporters won’t like it. As far as I’m concerned, they’re the bad neighbors next door, and I don’t care what they think. And convicting him of his crimes against our democracy would go a long way to reaffirm the strength of democracy in our country.
But, realistically, I think it’s a long shot that we’ll ever see him in prison stripes or behind bars.