Ignore Jack Smith’s Critics
The prosecutions of Donald Trump are something to celebrate, not lament.
Several distinguished individuals have recently expressed grave reservations about the prosecutions of former President Donald Trump. Notably, they appear to have no dispute about the seriousness of his wrongdoing. Rather, their main concern is that “terrible consequences” may result, because the prosecutions “may come to be seen as political trials … and play directly into the hands of Trump and his allies.” Although many Trump supporters will view the situation in just this way, any suggestion that prosecution is therefore unwise misconceives what is at stake here and, sadly, is evidence of America’s diminished national spirit.
For a free society wishing to preserve its governmental system, the prosecutions of Donald Trump for trying to overturn our democracy and willfully mishandling national secrets are not optional. They are the essential step that must be taken if America’s rule of law is going to survive, and be worthy of the trust that is essential to that survival. More hopefully, they offer the nation its single best chance of escaping from the appalling thrall of Trump’s lies and insults since he came down that escalator eight years ago.
One cannot imagine a more serious set of offenses by a sitting president against the nation than working deliberately to overturn the result of a democratic election—one that he clearly knew from his closest advisers he had lost—or illegally squirreling away and refusing to return some of the country’s most sensitive secrets. The seriousness is greatly magnified in the first instance by the extent and persistence of the conduct at issue, spanning many months and transcending multiple states and means used to change the electoral outcome. In the documents case, again, the amount of classified material and the persistence of evasive efforts to avoid returning the materials are breathtaking.
The extent and quality of the evidence of wrongdoing in both cases, including audio and video tapes, are also extraordinary, and reveals in countless ways that Trump was the primary driving force behind virtually all of the key misdeeds in both cases. In any situation where so much evidence exists, there will be complexities associated with prosecuting. And yes, a jury could nevertheless acquit or hang. But that risk is present in every criminal case, and is no reason to decline to prosecute.
To do so in these cases—featuring truly egregious wrongs personally committed by someone in a position of the highest trust—would be a failure of our vaunted system of equal justice at the most fundamental level. The planners and perpetrators of the January 6 events that Trump inspired and refused to stop are now receiving sentences of roughly 20 years; giving a pass to the person who unquestionably caused it all by violating his most sacred obligations to the nation would be unthinkable.
But it is not just an abstract commitment to justice—and to the idea that no person should be above the law—that urgently necessitates prosecution here. It is also the need to deter the worst forms of conduct that Trump has persisted in as we look forward to future elections, including those happening next fall. Although he failed to achieve his goal by illegal means in the election of 2020, he and many of his Republican allies are working hard not only to delegitimize the last election, but to see that the next election will go his way regardless of the votes actually cast. If very strong evidence of such wrongdoing does not merit criminal enforcement, what is to deter Trump or anyone from trying to steal elections in the future?
Doubters about the wisdom of prosecution argue that many Trump supporters are going to view the prosecutions as politically motivated because, as a former U.S. assistant attorney general wrote in The New York Times, they “come from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.” On this logic, no doubt many will give credence to the claims of “weaponizing the Department of Justice” that Republican politicians have been advancing.
But such allegations have no basis in fact. Attorney General Merrick Garland has conducted himself in an exemplary way. Indeed, the refusal to move faster or more openly in the investigation of Trump has long frustrated many Democrats, and many saw the appointment of a special counsel as unnecessarily cautious. But after Bill Barr’s radical politicization of the Department of Justice to advance Trump’s interests, Garland’s exceeding care to avoid any appearance of political motivations has been quite a reasonable approach in an effort to restore the department’s reputation for regularity and evenhandedness.
Attacks on the prosecutions as the politicization and weaponization of the Department of Justice are another part of the skein of lies that Trump and his allies have created to mislead his followers. It cannot be that meritorious prosecutions for the most serious offenses imaginable should be forsworn because the defendant has managed to delude a large number of people into believing something that is totally untrue.
The challenge that America faces calls for the country’s best and brightest prosecutors to do their utmost in formulating and pursuing these most important of cases. Hand-wringing that things might go awry is not productive in the least.
Instead, this is a time to celebrate the great corner that has been turned in the effort to once and for all repudiate Donald Trump. While the justice system alone cannot save democracy, the reckoning now finally under way may be of appreciable help in restoring some rationality to our public life. The reality framed by the pending charges is casting Trump in a new light. Perhaps his greatest allure to his followers has been his apparent ability to defy all forms of authority and remain unaccountable for his deeds. That is not possible now. For now, Trump can still raise money using his mug shot—itself a token of his subservience to a higher authority—but how will the Trump cult fare as his accountability to society for the heinous wrongs he has committed becomes progressively clearer in the months ahead?
The process of justice, hidden from view for so many months as investigations proceeded, has now engaged him in a series of proceedings that will move forward in ways beyond his control. Four different cases around the country are now on course to trials in which the truth or falsity of extremely serious allegations will be adjudicated in a manner that is fair to all. That is both something that many doubted would ever occur just a few months ago—and the most that a free society can hope for.