This week, at long last, Donald Trump has been indicted for conspiring to overturn the 2020 presidential election. The indictment makes it clear that it wasn’t illegal for him to lie about the election results or file spurious lawsuits. But much of what he did in the aftermath of the election went well beyond that — for example, conspiring to generate counterfeit electors in states that he lost and to get these electors to “cast fraudulent votes” in the Electoral College and “sign certificates falsely representing that they were legitimate electors.” These are serious charges and they deserve a hearing.
Many of Trump’s apologists have been arguing that the Justice Department trying to punish the misdeeds of a former president is a sign that the legal system is dangerously “politicized.” But they have it exactly backward. While a judicial branch that somehow exists totally apart from politics is a pipe dream, the most dangerous way for political considerations to intrude on the legal system is for presidents and other powerful people to be treated as special people who aren’t subject to the same laws as the rest of us.
The National Review vs. the Rule of Law
Some loud voices on the Right are touting Trump’s indictment as evidence of a double standard, proof of deep partisan bias within the American establishment. Why haven’t former Democratic presidents been held to account for their misconduct?
This argument would hold more water if Ronald Reagan, for example, had faced legal consequences for Iran-Contra or the CIA’s drug running in the 1980s — or if George W. Bush were currently serving several consecutive life sentences for illegally invading Iraq and setting up a global network of “black sites” where people who’d never been convinced of any crime were imprisoned and tortured.
The reality is that nearly all presidents who break the law, Democrats and Republicans alike, get away with it. If you’re bothered by elite impunity, shouldn’t it be encouraging that at least one president is finally facing the music?
The conservative magazine National Review has editorialized that while Trump may have abused his power in attempting to overturn a democratic election, the court system shouldn’t be used to punish him. Part of their case is about the specific statue used to indict Trump — a Reconstruction-era law about conspiring to deprive voters of their right to a fair election. The editors argue that this law was “designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote” and that the context is too different to use it here. They also claim that the constitutionally appropriate remedy for executive misconduct is impeachment by Congress, while “criminal prosecution is designed to address private wrongs, not derelictions of public duty.”
The first argument is dubious — especially coming from conservatives. Following the lead of the late conservative Supreme Court Justice Antonin Scalia, most conservatives are “textualists” about the law. This school of thought holds that all that matters is the meaning of the words actually used in a statute, given how all the terms were understood at the time it was passed. On this view, if Congress didn’t intend a law to be used in a particular way, the onus is on them to pass a new law to correct the unintended consequences. All that should matter to the courts is the actual text.
Whatever you think of the applicability of the statute, though, the second argument is outrageous. Why should ordinary people face prison for “private wrongs” and powerful people face no consequence except possible removal from office for breaking the law on a far grander scale? It doesn’t stand to reason that already being out of office means that it doesn’t matter what evidence emerges about laws Trump broke as President.
If you or I were caught suborning a witness to give false testimony in a case about a stolen car, we’d be in serious legal trouble. The National Review thinks Trump should get a get-out-of-jail-free pass for suborning sham electors to sign false certifications that could have deprived millions of people of their fundamental democratic right to decide who ruled them, regardless of what law is used to charge him or how much evidence there is of his guilt, just because he used to be the president.
Kings and emperors in other forms of government are treated as elevated beings who can’t be subject to the same rules as ordinary mortals. That’s not how democracies are supposed to work.
Prosecute Them All
Sometimes I see people darkly warning that prosecuting Trump could set a precedent that would be used to prosecute Democratic presidents for their crimes. My response to this warning is best expressed in the title of a classic song by the band Panic! at the Disco: “Don’t threaten me with a good time.”
I would love to see President Barack Obama, for example, face criminal prosecution for the many drone strikes he ordered around the world — including the strikes that killed radical imam Anwar al-Awlaki and his sixteen-year-old son, Abdulrahman al-Awlaki, both of whom were US citizens. These strikes amounted to extrajudicial executions of terrorism suspects who hadn’t been convicted of any crime and who were nowhere near anything that could remotely be construed as a battlefield. In the case of al-Awlaki, there’s reason to think that it was an extrajudicial execution not even for clearly illegal acts but for the inflammatory words in his sermons.
And that brings us to the real double standard here. Trying to overturn an American election is the kind of crime the Justice Department takes seriously. Extrajudicially slaughtering scary Muslims in a foreign country, even ones with US citizenship, is not. Even George W. Bush invading Iraq based on lies doesn’t count. Hundreds of thousands of people died and millions became refugees, but those were the wrong kind of victims for our justice system to take an interest in them.
The solution to that double standard, though, isn’t to let Trump off the hook for conspiring to overturn a democratic election. It’s to indict George W. Bush. One president finally being subject to prosecution for some of his crimes isn’t nearly enough, but it’s a start.