I’m no longer doubtful: If Garland has a case, Trump must be prosecuted

Not so long ago, I was squeamish — nervous about the consequences, immediate and long-term, of having any administration prosecute its predecessor and chief political rival.

Prosecuting Trump threatened to further divide an already polarized nation; a conviction, even if secured, would be deemed illegitimate by a substantial portion of the population. If acquitted, Trump could be emboldened and empowered, a martyr to a seeming Democratic vendetta.

And whatever the outcome, the fateful step of bringing charges against a former president based on his conduct in office could unleash a dangerous cycle of tit-for-tat political prosecutions and revenge prosecutions. This is the stuff of banana republics, not the American system of justice.

I was also doubtful that Attorney General Merrick Garland would ultimately determine that the building blocks of a successful criminal case had been assembled — or, if they were, that bringing the case was in the interest of justice.

Prosecutors, after all, must be confident of their ability to prove their case beyond a reasonable doubt. Applying the precise elements of the criminal law to the conduct of a president who would argue that he was acting in the exercise of his official duties would introduce complicated questions of constitutional law. Garland, by nature cautious and methodical, would proceed only if the evidence were too overwhelming to ignore.

We don’t know yet what he will do; there are too many critical witnesses left to be heard from, and the evidence we have heard has not been tested by experienced prosecutors — no less subjected to cross-examination.

But my squeamishness and doubts have yielded — if not to the absolute conviction that Trump should be prosecuted, then to the increasing belief that charges are warranted, and that failing to bring them would be more damaging to the nation than turning a blind eye to his effort to subvert democracy and prevent the peaceful transfer of power.

What changed my mind? The evidence. The facts amassed by the House select committee are damning, morally and legally. To understand their weight and import, think back to the second impeachment trial and wonder: What if we knew then what we know now?

We know now that Trump could have harbored no doubt that he lost the election, and resoundingly. This unwelcome fact was driven home to him by his attorney general, senior Justice Department officials, White House lawyers and his own campaign team.

We know now how extensively Trump pressured state officials to support his scheme to overturn the election. It wasn’t just the infamous call to Georgia Secretary of State Brad Raffensperger to “find” the necessary number of phantom votes but also his pressure on Arizona House Speaker Russell “Rusty” Bowers to support a slate of phony electors.

We know now that Trump’s exhortation to come to Washington on Jan. 6, 2021 — “Be there, will be wild” — was merely the desperate culmination of his frustrated attempts to forestall the vote-counting by other means.

We know now that Trump was secretly plotting all along to urge his supporters to march on the Capitol that day — that this was no off-the-cuff, ad-libbed exhortation but a premeditated, closely held plan.

We know now that officials across the administration, including White House Chief of Staff Mark Meadows and Director of National Intelligence John Ratcliffe, feared violence erupting on Jan. 6. “Things might get real, real bad on Jan. 6,” White House aide Cassidy Hutchinson said Meadows warned.

We know now that Trump wanted to join the mob in marching on the Capitol — that this was his plan all along; that his lawyers believed this would be “legally a terrible idea for us,” according to Hutchinson; and that he was enraged when he was prevented from following through.

We know now that Trump was fully aware that some of the supporters he urged to go to the Capitol and “fight like hell” were heavily armed.

We know now that when the rioters breached the Capitol, Trump was unperturbed. “He doesn’t want to do anything, Pat,” Meadows told White House counsel Pat Cipollone, according to Hutchinson. We know now that the claims of Trump’s impeachment lawyers that he, “like the rest of the country, was horrified at the violence,” were false.

We know now that Trump was similarly unfazed by the chants to “hang Mike Pence” — in fact, that he thought Pence deserved that fate for resisting his pressure not to certify the electoral college vote. We know now that the assertion by Trump impeachment lawyer Michael van der Veen that “at no point was the president informed the vice president was in any danger” was also untrue.

What criminal statutes does all this conduct violate? Try 18 U.S.C. Section 1512(c), which applies to anyone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” Try 18 U.S.C. Section 371 which prohibits conspiracy “to defraud the United States”; such defrauding includes efforts to obstruct “the lawful functions of any department of Government.”

Is it in the interests of justice — and is it in the broader interests of the nation — to charge Trump with a crime? The Justice Department’s “Principles of Federal Prosecution” offer some guidance here. Two sentences in particular stand out:

“If a person … is reasonably believed to have engaged in criminal activity at an earlier time, this should be considered in determining whether to commence or recommend federal prosecution.” Special counsel Robert S. Mueller III identified 10 instances in which Trump might have obstructed justice in connection with the Russia probe; Mueller didn’t proceed because Trump, as a sitting president, was shielded from indictment under Justice Department practice.

“The fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense, might weigh in favor of prosecution.” There is no greater position of trust or responsibility than the presidency, and no one who so flagrantly and repeatedly abused that trust more than Trump.

If and when Garland confronts the agonizing choice of whether to prosecute a former president, that position — and that history — should be top of mind.