To Prosecute Trump or Not to Prosecute Trump. That is the Question.

By this point in my life, I have a fairly well-developed sense of where I stand on most things. Finding money = Good! Unbearable pain = bad! And so it goes for most issues from what clothes I look good in (none) to where I stand on auditing the Fed (aggressive indifference).

But I have found myself torn on one issue recently. I keep going back and forth, yet whenever I feel I’ve arrived at a position, I can’t shake the nagging feeling that perhaps the other side has a point. That issue is whether or not the incoming Biden administration should prosecute Donald Trump after he leaves office.

There is certainly no shortage of possible charges that could potentially be leveled against Trump, including, but not limited to, obstruction of justice, tax fraud, campaign finance violations, bribery, treason, extortion, even washing a fish at a faucet if it is not a “fish-washing faucet”. And yes, that is a federal crime (16 USC §551 & 36 CFR §261.16(c), and no I don’t have direct evidence that Trump has done that, but would you really be surprised?

I certainly get the arguments in favor. No person is above the law. If I, or you, or almost anyone had committed any of these crimes, there’s no question we’d be arrested and prosecuted quicker than you can say “wait…am I being arrested and prosecuted?”. It is difficult to call a system where the weak are punished and the powerful are not a system where justice prevails.

Further, given Trump’s aggressive indifference to the law, or to societal norms of any kind, giving him a pass would send a terrible message to future wanna-be despots and dictators that there are no consequences for bad behavior. It would truly make Nixon’s adage that “if the president does it, it’s not illegal”, the governing reality of our nation. This is the opposite of deterrence, which I suppose we can call “encouragement” for future presidents who already, arguably, have too much power, to abuse the prerogatives of their office if it suits their political or personal interests.

The strength of this argument is compounded by the fact that the only alternate remedy for rogue presidents is impeachment. But in an age defined by hyper-partisanship, ideological news outlets, social media and the never-pausing news cycle, impeachment is not really a practical option anymore.

In 1974, Senator Barry Goldwater famously led a group of his fellow Republicans to tell Richard Nixon that he no longer had the support of his party and must resign or be impeached. These days, in the face of far more serious and numerous offenses, we would be more likely to see Senator Lindsey Graham lead a group of his fellow Republicans to tell President Trump how awesome he is and promise him their undying support in his crusade to own the libs. Bi-partisan impeachment is no longer a thing.

So, it’s clear in my mind that Trump is truly a lawless president who has committed crimes the way Wilt Chamberlain used to…let’s call it “go out on dates”. He is a dreadful person and the example of him getting away with everything will reverberate throughout history to the detriment of the rule of law everywhere. If he got what he deserved, he’d be locked-up with Hannibal Lector and a big bag of fava-beans.

And yet…I hesitate.

I do so because the countervailing arguments are not frivolous, and are arguably quite compelling.

One of the things that has historically separated us from your standard-issue tin-horn dictatorships is that our new political leaders do not throw their predecessors and/or political rivals in jail. I know that nobody (except maybe Alex Jones…oh, and the entire Republican party) would accuse Biden of embarking on a French Revolution-style purge of his political enemies. Blood would not be running in the streets.

But in the grand sweep of history, the line between punishing actual crimes and punishing your enemies for being your enemies is a blurry one. Just like declining to prosecute Trump would set an historical precedent which could be abused, so would putting him in the dock. Trump’s frequent bleats of “lock her up!” about Hillary or “lock them up” about the entire Biden family would be seen as less grotesque and taken more seriously if, for example, Jimmy Carter had thrown Jerry Ford’s ass in Sing-Sing.

One could also easily imagine a Donald Trump trial and sentencing being an all-consuming shit-show. If you are old enough to remember the OJ Simpson case, you will recall how that eight-month long trial became a national obsession. It was all anyone talked about and was covered pretty much 24–7 by all of the major news outlets. A Donald Trump trial would be that on steroids, but much worse. At least the OJ case was not infused with ideology or partisanship. A Trump trial would run the very real risk of provoking violence in the streets on a level we have not seen before.

Given Trump’s hold on the Republican base (which is only likely to be exacerbated if he was prosecuted by a liberal, Democratic administration), GOP officials and aspiring office-holders would (like we see now) face enormous pressure to show loyalty and fealty to the defendant. This would manifest itself in pressure on Republican members of Congress not to work with the new President in any way, lest they be seen colluding with their hero’s tormentors. It is a recipe for angry, toxic gridlock in government, and I’m not sure that’s what the nation needs just now.

It also makes me profoundly uncomfortable to imagine a former President of the United States, even one as odious as Trump, sitting in a prison cell, making license plates, shivving a fellow inmate in the yard, carving a fake gun out of soap, etc., I would imagine almost everyone being profoundly troubled about how this would make America look to the world.

When considering a similar question regarding his predecessor, Barack Obama decided to “look forward, and not back”. He focused on passing health care and moving other policy priorities forward. We all know that Jerry Ford came to a similar conclusion and pardoned Richard Nixon. Although even if you agree with their decisions, it’s not clear that our current situation is the same. The blatant disregard, and even hostility to the law shown by Trump is far more egregious than anything George W. Bush or even Nixon ever did.

Also, after leaving office, Nixon quietly retired to San Clemente and Bush just went away to paint (who knew?). Our current narcissist-in-chief plans to stick around, in our faces, forever. If his current attempted coup fails, he has already promised (threatened?) to run again 2024, even announcing his candidacy during Biden’s actual inauguration. So unlike previous presidents, there is specific deterrence in addition to general deterrence to consider.

This is a tough question. Another tough question is what we’ve allowed to happen to our country in order to even be in a position to face a quandry like this.

Long-time state House and Senate member, author of PA’s Medical Marijuana law, also creator of “shit-gibbon!” Comedian, professor, father of 2 awesome children!

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