Should the United States indict Donald Trump?
By Chris Honoré
After watching the House Jan.6 committee take testimony from those Republicans who were part of the Trump administration, it has become apparent that the breaching of the Capitol on Jan. 6, 2021 was not simply a spontaneous act carried out by an angry “Stop the Steal” mob, but the result of a well-planned, obstructive conspiracy with Donald Trump at its center.
Having said that, the question is now begged: What should follow?
In a recent article written by Jack Goldsmith, he opined, “The Capitol attack poses for Attorney General Merrick Garland one of the most consequential questions that any attorney general has ever faced: Should the United States indict Donald Trump?”
Realizing that this decision poses an extraordinary conundrum for the A.G., my answer would still be “yes,” for I judge the indictment as having to do with far more than just the planning and incitement of an insurrection by Trump and his cohort of bad actors/allies/sycophants, but is a long overdue reckoning for a man who has for decades escaped all accountability for a host of despicable (criminal?) acts, made especially evident during his tenure as President.
As an aside, I should acknowledge that I believe to my core that we are a nation of laws and not of men and therefore I have nurtured the fantasy of the former President wearing an orange jumpsuit, handcuffed, not unlike a mob boss who has, with impunity, run a criminal enterprise.
But having said that, and I realize that it may sound partisan in the extreme, there is more left to say about the A.G.’s decision.
Goldsmith focuses on three options: Create an impartial special prosecutor to investigate the conspiratorial machinations set in motion, which had the goal of overturning the 2020 election results. Doing so would confront the issue of there being a conflict of interest for the Department of Justice since Joe Biden will be (as of this writing) Trump’s likely adversary in 2024.
Should Garland decide to keep the investigation within the D.O.J., he and his deputies must then decide whether there is enough evidence to actually prosecute the former President and prove beyond a reasonable doubt that federal crimes were committed by Trump et al. This will, of course, require meeting a higher standard than that met by the Jan. 6 committee. Can the D.O.J. prove that Trump corruptly intended to obstruct an official proceeding (e.g., pressuring Vice President Mike Pence to invalidate the states’ vote tallies) and thereby hold on to the power of the presidency? Of course, Trump will argue that his actions (to include The Ellipse speech that incited the mob), were based on his oft-repeated belief that the 2020 election was fraudulent.
And there is one other issue to be considered by Garland: Is the indictment of the former President in the national interest? This is not a decision made on the basis of law, but one that is perhaps the most difficult to sort out, and also takes us back to our fundamental belief in the primacy of the law before men.
I’ve tried to imagine how those 74 million Americans who voted for Trump in the 2020 election would react. Keep in mind that there are currently 100 Republican nominees for congressional and statewide offices who claim election fraud took place in 2020. As well, some 150 Republican members of Congress voted to overturn the 2020 election result.
But then there’s this: Would the failure to indict Trump, regardless of his defiant crimes against our democracy and the Constitution, imply that there are, indeed, those among us who are above the law?
This dilemma for the D.O.J. is no small thing. How it will be resolved awaits us. Would the indictment of Donald Trump only intensify the acrimony our already fractured, highly partisan nation is experiencing? Would months of testimony and argument cause irreparable damage to our institutions and future elections? And how would such a trial impact the remainder of Joe Biden’s term in office? We’ll see.
Email Ashland resident Chris Honoré at firstname.lastname@example.org.