Crime and Punishment

I’ve had this essay in the works since early fall, looking ahead—hopefully—to Trump’s departure. (And I do mean hopefully in the correct sense of the word.) 

Originally it was titled “The Case for Prosecution,” the idea being to argue for why holding Donald Trump account for his various crimes—both via impeachment and ordinary criminal prosecution, among other mechanisms—was in the best interest of the nation. Even in the fall that was not a super controversial position, although a second impeachment was not yet on the horizon, and there was some concern about the banana republic-brand pitfalls of an incoming administration pursuing legal action against its predecessor.

But the events of January 6th pretty much put an end to that debate. 

After watching Donald Trump openly incite a violent insurrection that sent a bloodthirsty mob into the US Capitol to murder Mike Pence and Nancy Pelosi and stop the certification of the Electoral College results (note to people emerging from comas, time travelers, and alien visitors from distant galaxies: yes, that really happened), most Americans agreed that he must be held accountable under the law one way or another.

According to an ABC News poll taken in the immediate aftermath of the Capitol riot, 67% of the American public blamed Trump for it, and 56% thought he should be removed from office before the end of his term. According to an earlier poll by JL Partners and the Independent taken in October, about half of all Americans (49%) believed he ought to be investigated for criminal liability once he was out of office…..and that was before the insurrection. Afterward, that number rose to 54% who now think he should face criminal charges, according to a Washington Post/ ABC News poll

Of course, we don’t do things just because a majority thinks we should—the Framers built in some protections on that count. But those numbers speak to the vox populi and a mandate for justice. 

So you’d think that’s that. 

But you’d be wrong. 

Once again, the members of the Republican Party are engaged in a wantonly dishonest, howlingly hypocritical, anti-democratic crusade to shield themselves and their once and forever leader from answering for what they have done. 

Therefore let us spend some time surveying the case for accountability.

GIMME A ‘U’

By now we are all familiar with the Republican argument for giving Trump yet another free pass: that America needs “unity,” and that holding him accountable will somehow prevent us from “healing” and “moving on.”

That might be the most ridiculous and galling argument the GOP has put forward in five decades of world-beating deceit and dishonesty, going all the way back to Nixon’s claim to be the champion of “law and order,” with honorable mention for “tax cuts for the wealthy will help everyone.” 

Over the past few weeks, many many many many many many many pundits, observers, and other critics have taken that argument apart like a starving wolverine descending on a pork chop, so I’ll just summarize:

Cries for unity are rich coming from the party that just plunged this country into four of the most bitterly contentious years in contemporary American history, under the thumb of the most hateful, bigoted, and divisive president in modern times. But even if you accept that “unity” is a worthy goal, the Republican plea is transparently self-serving. Appeals for “unity” usually come from the guilty in an attempt to escape repercussions for their misdeeds, and this case is no exception. 

To state the blindingly obvious, there can be no unity without accountability. Period dot, end of sentence. 

Republicans argue further that Trump didn’t really foment a riot, and that crimes committed in the last two weeks of office don’t count; we’ll delve into these equally laughable defenses next week when we get into the weeds of the impeachment. But the main GOP thrust remains centered on this wildly disingenuous call for a rousing nationwide chorus of “Kum-ba-ya,” after playing “The Horst Wessel Song” at top volume for four years. 

Worth remembering: the liberal organization MoveOn arose in the Clinton years and is so named because its original argument was to censure Bill and “move on.” Note that it did not call for ignoring or excusing what he’d done, only that censure was more appropriate than impeachment. Republicans, by contrast, feel that their leaders never need to answer for their actions at all, no matter how egregious or even openly criminal. (Let’s recall that with Clinton the crime in question was one count of perjury over an extramarital affair—not violently trying to overthrow the US government.)

So no, we can’t just “move on” with no accountability at all.

It’s not merely a matter of justice, though that ought to be sufficient, but of deterrence going forward. Grant Tudor of the policy group Protect Democracy notes, “Moving on might make us feel better in the short term, but in the long term, sweeping really dangerous behavior under the rug and crossing our fingers that it won’t happen again has, time and again, proved to be a pretty dangerous strategy.”

That too should be apparent even to those Americans no more sentient than a tree stump. Of which it appear there are plenty.

As a group of more than a thousand historians and scholars wrote on Medium, “Throughout his presidency, Trump has defied the Constitution and broken laws, norms, practices, and precedents, for which he must be held accountable now and after he leaves office…..No future president should be tempted by the example of his defiance going unpunished.”

Even after January 6th attack on the US Congress, some conservatives have continued to argue for impunity, like the writer Jonathan Rauch, who had a piece in Lawfare  titled “The Case for Pardoning Trump” in which he argued that “If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.” Ryan Cooper reporting in The Week, took that absurdity right apart:

This is an astoundingly terrible argument. Trump’s monstrous presidency was in no small part the product of previous elite impunity, and he should absolutely face legal liability as any other citizen would in his place.

Preach. 

ANOTHER COUNTY HEARD FROM

So is impeachment punishment enough, or do Trump’s actions demand both that and something more? The always incisive John Cassidy wrote in The New Yorker:

In other democracies, a leader who tried to overthrow an election result and incited a violent insurrection might well be cooling his heels in prison by now. In this country, the job of policing the President falls largely on the legislative branch. For four years, it has failed dismally to carry out this task. Even after the unprecedented events of last week, it’s far from clear that Congress will prove up to the task now. But this time, surely, and for the sake of American democracy, Trump must be held accountable.

He is quite right, of course, as 45 Senate Republicans—all but five of their number—voted against even impeaching him. Luckily, elections have consequences and the new Democratic majority prevailed, joined by five Republicans who could muster the bare minimum of moral courage. But it looks highly unlikely that a two-thirds majority will vote to convict, despite being both eyewitnesses to and victims of the very crime for which they will serve as jurors.

That failure adds impetus to calls for criminal prosecution of Trump in the regular criminal justice system, as opposed to the purely political process of impeachment.

Ahead of Biden’s inauguration, The New York Times noted:

(M)any Democrats say that impeachment is not enough. Once President-elect Joseph R. Biden Jr. takes office on Jan. 20, wide segments of his party are eager to see investigations and prosecutions of an array of Trump aides and allies—an effort, they say, that would bolster the rule of law after a presidency that weakened it and serve as a warning to future presidents that there will be consequences for illegal actions taken while in office.

(In June 2019, then-presidential candidate Kamala Harris told NPR she would definitely launch a criminal investigation of Trump after he leaves office.) 

But as you might imagine, Republicans who don’t think Trump ought to be impeached certainly don’t think he should stand trial like—gasp!—an ordinary criminal.

We expect Republicans to mount a dishonest, hypocritical argument for letting Trump skate. But what of Democrats and others who are taking that bizarre view?

Yahoo Finance columnist Rick Newman opined:

One thing seems clear: There would be no partisan unity under Biden if his Justice Department pursues legal claims against Trump that wind through the courts for years. There might not be any unity regardless, even if Biden lets Trump off the hook. But Biden won’t even get credit for trying if he turns over Trump’s tax returns or sends prosecutors after his predecessor. Anybody who voted for Biden hoping he’d offer an olive branch and lower the volume might think differently when they vote in the 2022 midterms or the 2024 presidential election.

Yes, because it’s up to Biden and the Democrats to heal the breach, while the QAnon Party continues to insist that the new administration isn’t even legitimate, and readies its hockey sticks and fire extinguishers (and guns) for the next violent attack on federal and state buildings.

Then there was Jim Comey, who even after the insurrection weighed in against punishing Trump, saying “The country would be better off if we did not give him the platform that a prosecution would for the next three years.”

Thanks, Jim, but after October 28, 2016, I’m not sure I need to hear even one more word from you ever again. 

In an op-ed for NBC News, Michael Conway, a Democrat and former counsel to the House Judiciary Committee during the Watergate hearings, goes even further, arguing that Biden should himself pardon Trump in the interest of unity: 

A Biden pardon of Trump, like the pardoning of former President Richard Nixon 46 years ago, would be intended to heal the nation and foreclose the possibility of an ongoing cycle of retribution after political parties change control of the government.

Let’s spend a little time with this argument, as Mr. Conway’s piece is an absolute howler of bad advice, especially coming from an accomplished attorney and Democratic operative, suggesting an old man wildly out of touch with contemporary America. (Conway, like Biden, is in his 70s.) 

He starts off OK, writing:

Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.

Conway then argues that accepting the pardon would be an admission of guilt by Trump. But Nixon never admitted guilt as part of accepting the pardon from Ford; do we really think Trump would feel compelled to abide by that norm? (Don’t make me spit milk out my nose.) Would his rabid fans….or would they cheer it as exoneration, and weakness by Biden?

Conway also argues that Trump would still face charges at the state level. But is that a reason for forfeiting federal prosecution?

Mr. Conway’s central argument is that a pardon would free Biden and his team from allegations of pursuing a partisan vendetta, making him “better” than Trump, who wanted to jail his political enemies, and was unable to do so only because they’d committed no crimes. (Clever bastards.)

But who cares? Republicans certainly never cared about the bad optics of their actions. On the contrary: they reveled in them. Merely not prosecuting Trump—or leaving it to his DOJ, without White House interference—would accomplish the same thing without the farce of a pardon. And Joe Biden is already “better” than Trump by every imaginable metric.

Biden already pledged last May that he absolutely would not pardon Trump. Conway argues it’s OK for him to break that pledge, because we now see how many Americans voted for Trump and would be happy if he were absolved…..that even an investigation of Trump, let alone a prosecution, would make him a martyr and create further divisiveness. 

So did going to war with the Confederacy. Should we have let that slide?

After the Trump-Biden race, America needs healing. We can’t continue as a nation so divided.

The 73 million Americans who voted to re-elect Trump two weeks ago will be just as angry about a good faith federal investigation of Trump after he has left office as Democrats were angry about Trump’s baseless chant to lock up his former political opponents.

They may be, but that doesn’t mean we should appease them.

Conway writes that “American democracy cannot tolerate the prosecution of political opponents.” But it can and should when they’ve committed unconscionable crimes. You know American democracy cannot tolerate? Looking the other way when violent, sadistic, openly corrupt kleptocrats hijack it, and sitting on our hands and hoping it doesn’t happen again.

See above. No accountability, no unity. No justice, no peace. 

PICTURE YOURSELF IN A BOAT ON A RIVER

Conway ignores the fundamental fact that a pardon for Trump would send exactly the wrong signal: that the rich and powerful can get away with murder (close to literally in this case). It’s not about revenge, it’s about justice and affirmation that we are nation of laws and no one—not even the president—is above them.

We’ve been here before, of course, as Conway himself alluded.

Gerald Ford went to his deathbed claiming there was no quid pro quo in his appointment as Nixon’s vice president and subsequent pardoning of his erstwhile boss in 1974. 

And John Lennon claimed “Lucy in the Sky with Diamonds” wasn’t about LSD.

If the history is to believed, Ford apparently was telling the truth, and—incredibly—there really was no deal with Tricky Dick over a pardon before he assumed the vice presidency, not even a discussion of it. (For the record, Lennon was telling the truth too, although he had the excuse of being high as a kite.)

But the absence of a dirty little deal still leaves the question of whether the pardon was the right call. Ford faced a hurricane of criticism for his decision, and may well have lost the 1976 presidential race right then and there. But since then a revisionist view has arisen among historians that he actually did the right thing. 

I beg to differ in the strongest possible terms. 

I humbly submit that far from “sparing the nation more trauma,” “healing the country,” allowing us to “move on” from our “long national nightmare,” Ford’s excusal of Nixon’s crimes, even if well-intentioned (and Ford was certainly likable enough when he was an original cast member of SNL), did grievous harm. It legitimized the hustle. It told America that you were a sucker if you played by the rules. It said that if you were rich enough and powerful enough the laws didn’t apply to you—that there was one set for those folks and another for the rest of us in the hoi polloi. It was a giant fuck you to ordinary Americans who were expected to obey the law and could bet their bottom dollar that Johnny Law would come after them if they didn’t.

In fact, Ford missed a tremendous opportunity to reinforce the rule of law, as it would have been Nixon’s own party punishing him, rather than the opposition doing so. Ford might have set an important example and precedent by insisting Nixon answer for his crimes, rather than granting him a get-out-of-jail-free card. 

It was the original IOKIYAR(President). And it will be even more so if we let Trump slide on crimes that make Nixon look like a jaywalker.   

Ford, of course, only got the job in he first place because Nixon’s first vice president, the incredibly corrupt Spiro Agnew, was forced to resign ahead of being charged with taking bribes and kickbacks—envelopes full of cash, no less—from the time he was governor of Maryland all the way through his years as Vice President of the United States. And Spiro was fuckin’ lucky:  given the evidence prosecutors had, anyone else would have been thrown in prison for the rest of his days. But US Attorney General Elliot Richardson, who would later seal his fame with his noble actions during the Saturday Night Massacre, was justifiably worried that Nixon would be impeached or resign, leaving the country with Agnew as president. So the decision was made to let him resign and get away basically scot free for the greater good of the nation. (See Rachel Maddow’s book and podcast on the Agnew tale, Bag Man.)

That was probably the right decision for the country, but it was an incredible miscarriage of justice nonetheless. However, it was at least part of a utilitarian calculus aimed at catching the bigger fish. Nixon’s pardon did not even have that flimsy basis.

Ford’s logic that a trial would only extend America’s suffering and be even more divisive was ludicrous. (Shame on you, Yale Law School.) Try it the next time you’re on trial:

“Your Honor, it does appear that I robbed that bank. Yes, there’s video of me sticking a six-gun in the teller’s face. But wouldn’t putting me on trial just cause everyone more grief and suffering?”

Yet Trump’s apologists—and, again incredibly, even some others—are making the same risible proposal now. 

Fool me once, shame on….uh…..can’t get fooled again, as another Republican president once said.

ONLY THE LITTLE PEOPLE GET PUNISHED

War story. (Cold War, but it still counts.)

When I was a young lieutenant in Germany in the ‘80s, I was stationed at a remote kaserne not-so-lovingly nicknamed the Rock, as part of the 1st Brigade 3rd Armored Division. With two infantry battalions, two armor, one field artillery, and one combat support, there were upwards of 3000 troops stationed there—all men but for maybe twenty women in that CS battalion. 

Near the end of my three-year tour, the brigade commander, a full colonel, was caught having an extramarital affair with one of those women, a young Military Police second lieutenant. The scandal prompted a great debate within the ranks about what should happen to the Old Man. (It was more than thirty years ago, so bear in mind that this was very much pre-#MeToo.)

One school of thought was that, notwithstanding his undeniable transgression, his punishment should be mitigated in light of his many years of faithful service, including Vietnam. The other school was very much the contrary: that he should be hammered with the full force of the Big Green Machine’s might, because he should have known better, and as a lesson to the troops that no one is above the law, and that leaders above all have an obligation to set the example and are held to an even higher standard. 

The latter won out: that colonel was unceremoniously cashiered, forced into immediate retirement, his career and reputation ruined, plus I don’t know what other non-judicial penalties, reduction in rank, loss of retirement pay, and other financial punishments. He was shipped out of Europe literally overnight, gone on the next thing smoking. Today he might have also faced criminal prosecution for sexual harassment, but for the time, it was harsh.

Moral of the story: whatever its many other flaws, the Pentagon holds its senior personnel to a high standard. 

I guess our civilian leadership doesn’t feel that same ethical obligation. 

CERTIFIED PUBLIC ACCOUNTING

Some weeks ago I had an open dialogue in these pages on this very topic with my friend Tom Hall, who writes the brilliant blog The Back Row Manifesto. Tom’s central point (if I may paraphrase) was that America must have an acknowledgment of our wounds before we can begin even to think about healing. 

Unity depends on the polis having faith that we are a nation of laws, where some semblance of justice obtains. That faith requires holding our leaders to account—even if that means taking steps that are unprecedented. 

That means holding not only Trump accountable but also his accomplices and enablers: the Republican politicians who abetted him, the broadcasters who spread his lies, the donors who funded him, the law firms and consultancies and think tanks and media companies that are now being pressured not to hire his former underlings as they pass through the revolving door into the private sector.

If we do not do so, distrust in our democracy and the rule of law will only rise, and contempt will fester, and belief in the rule of law and justice in America—already on life support—will wither and die. Witness the bitter taste left after not one single person from Wall Street or the financial services industry went to prison for the criminal actions that led to the 2008 crash.

But this accountability, of course, brings it own risks. We cannot become a nation where each administration prosecutes the previous one for its policymaking. As destructive as the decision to leave the Paris climate accord was, I don’t favor charging Trump for being an accessory to mass murder in criminal court, even though it would be reasonable to do so purely on the facts. But other acts—like bribery, obstruction of justice, pressuring state officials to overturn an election, and above all open, violent sedition—take us into a different league. These matters are well within the purview of the US criminal justice system. Others, like the kidnapping and caging of migrant children, or criminal negligence in handling a pandemic might be best handled in the International Criminal Court as crimes against humanity, especially if it is shown that the administration deliberately allowed the virus to spread in communities of color, and withheld federal aid as a political tool (and there is evidence that it did both), or that it deliberately sought to seize children as a deterrent with no plan to ever return them, which we know it did. 

Republicans like the despicable Matt Gaetz are furious—furious!—that Democrats are even discussing criminal liability for Trump and members of his administration, tweeting, “This is now the Left’s goal – throw President Trump, his administration officials, his family and his supporters in prison. This is where we are now. Disgusting.”

Yes, what kind of monsters would build a political movement around the idea like “lock ‘em up”?

But while Gaetz is a human skidmark on the underwear of mankind, the question of political retribution is indeed fraught. That’s why we objected to MAGA World’s incarceration fetish in the first place. 

Beyond impeachment and criminal prosecution, whether domestic or international, there may be other ways to hold Trump and his henchmen accountable, including systemic changes to our democratic institutions. (More on that complex question in a future post.) But what cannot be denied is that not reckoning with the sins of the Trump years would be a hugely self-destructive mistake.  

Do we need something like South Africa’s post-apartheid Truth and Reconciliation Commission? The Times quotes former US Representative Tom Perriello of Virginia, who was a special adviser for the war crimes tribunal in Sierra Leone, as noting that countries that have suffered national trauma and “skip the accountability phase end up repeating 100 percent of the time—but the next time the crisis is worse. People who think that the way forward is to brush this under the rug seem to have missed the fact that there is a ticking time bomb under the rug.”

Needless to say, we don’t want to spend all our time on Trump, especially when it’s been such a relief to be rid of him these past two weeks. But as the cliché goes, we can walk and chew gum at the same time, and we have to reckon with what we’ve been through. That is especially true as we continue to struggle with suppressing a violent domestic insurgency of pro-Trump fanatics who have not gone away….and a political party that represents them and is currently engaged in its own civil war over whether it wants to return to being merely obstructionist reactionaries, or prefers to be the openly seditious party of lizard people hunters carrying guns on the floor of Congress and searching for Jewish space lasers.   

VENDETTA VS. JUSTICE, AND HOW TO TELL THE DIFFERENCE

In a piece for The Atlantic this past October titled, “Trump Has Justified Breaking One of America’s Most Sacred Norms,” Paul Rosenzweig—a former DOJ prosecutor and senior counsel in the Whitewater investigation, and Bush appointee at the Department of Homeland Security—writes that “The tradition of granting post-term immunity from prosecution to those who leave the White House now comes at too great a cost.”

The powerful should be held to account. For society to function, all Americans must believe that crime doesn’t pay and that everyone is equal before the law. To avoid strife, we may exempt a president from criminal investigation for his political actions (however heinous and criminal they may be), but if we go further, and extend to him the kingly prerogative of impunity for his lifetime, we go a long way to destroying the faith in the rule of law that undergirds democracy.

To be fair, this quote is pulled from a longer and more complex piece about how fraught that is, which we will leave for another day. Let’s turn instead to another piece from The Atlantic, by Barton Gellman, who writes:

Trump and his party brainwashed tens of millions of people with a proposition that could only lead to violence. What choice is there but rebellion against a pretender to the throne? Sedition, for Trump’s true believers, became the patriotic choice.

History is not finished with Trump, Cruz, or Hawley. If we value our democracy, they will face justice now. The reckoning has only begun.

Next week I will attack the question of the wisdom or folly of impeachment. (One guess where I land.) Down the road, we will tackle Rosenzweig’s much more complicated issue of how to hold Trump accountable in ordinary criminal prosecutions, and other possibilities. Stay tuned.  

But in all these venues the very first thing we must do is acknowledge the seemingly self-evident need for accountability, despite Donald Trump’s lifelong lucky streak of avoiding it, and the general injustice of American life. Trump must answer for his sins, and so must his capos. Absent that, we have no accountability, no unity, no rule of law, no hope for the future of the republic, no nothin’. 

Not hard to understand, is it?

Here endeth the lesson.

*************

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