Don’t Be Scared of Prosecuting Trump

An illustration of a gavel and the U.S. Capitol.
Getty / The Atlantic

On December 29, 1992, a grand jury delivered a 13-count felony indictment of Alabama Governor Guy Hunt. Four months later, the governor was convicted of money laundering—of looting his inaugural fund to cover a variety of personal expenses, including a marble shower—and removed from office.

At the time of Hunt’s conviction, former West Virginia Governor Arch Moore Jr. was rounding out a prison sentence for a litany of felonies, including tax fraud and obstruction of justice. Mail fraud and racketeering landed Maryland’s legendary progressive governor, Marvin Mandel, in prison, and election fraud did the same for Connecticut’s Governor John Rowland. Rhode Island Governor Edward DiPrete and Illinois Governor George Ryan served time for bribery, Tennessee’s Ray Blanton for extortion, and Louisiana’s Edwin Edwards for nearly all the above. And of course, Illinois’s Rod Blagojevich secured a 14-year prison sentence for his attempt to sell a U.S. Senate seat, among other crimes.

Against the recent spectacle of an American president and his allies inciting an insurrection, such criminal misconduct by other chief executives appears almost quotidian. Illegally lining one’s own pockets is never good, but extorting public officials to manipulate election results is more than a difference of degree. One might assume, then, at this stage of things, that accountability for lawbreaking would be uncontroversial. And yet debate over the appropriateness of prosecutions for possible wide-ranging criminal behavior at the most senior levels of government is in full swing.

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Various commentators have warned that prosecutions would “set a dangerous precedent” of punishing political opponents. Others have cautioned against the risk of creating martyrs or exacerbating polarization. After January 6, some changed their minds. But many others have not, speculating that the risks are still “just not worth it.” Even President-elect Joe Biden has made clear that he hopes to avoid “divisive” investigations. Although he has committed to a Justice Department that will operate with independence, “he can set a tone about what he thinks should be done,” as one adviser put it. And the president-elect has indicated that he “wants to move on.”

This would be a mistake. It not only contradicts the available evidence on how best to guard against the recurrence of serious transgressions, but also stands in odd contrast to how our own “laboratories of democracy”—the states—deal with misconduct by powerful executive-branch officials. Indeed, federalism provides the privilege to test government actions on a smaller scale in order to base more consequential federal decisions on evidence, not speculation. And the evidence from U.S. states is clear: When the rule of law runs its course, it typically prevails, and without precipitating a crisis.

A chief reason states prosecute their most powerful public officials is that prosecutions help deter future lawbreaking. Insofar as the law is applied consistently—without regard for the profile of the person in question—prosecutions send clear signals. Beliefs about the probability of punishment operate forcefully on people’s decisions.

Criminal affirmance—the tacit condoning of dangerous behavior in the absence of prosecution—also sends a clear signal. Research shows that, especially with elite criminal behavior, not pursuing punishment works to undermine confidence in government by visibly carving out exceptions in the rule of law, and broadcasts to other powerful actors that criminality is rewarding. As Mary Ramirez, a former trial attorney with the Justice Department, observed in the aftermath of the 2009 financial crisis: “A petty thief that evades prosecution has virtually no impact on the rule of law, but a CEO that evades prosecution … is an advertisement.”

The research holds when considering the effects of prosecutions on powerful public officials. A 2010 survey of 100 “transitional countries”—those emerging from periods of serious state-power abuses—finds a robust link between prosecutions of former leaders and deterrence of future leaders’ bad behavior. The clear expectation of punishment for misconduct both changes the cost calculation of would-be lawbreakers in government and powerfully communicates a society’s norms of permissible political behavior. Moreover, deterrent effects are most pronounced in countries where the judicial infrastructure is well developed—like ours.

Stateside, the same basic principle remains true: The more powerful the individual, the more important prosecutions become. Yet skeptics contend that high-profile prosecutions of public officials in the U.S.—particularly those of an outgoing administration—are laden with risks that outweigh the benefits. One of the most common concerns is that investigations and prosecutions would invite cries of a partisan witch hunt, delegitimizing any attempt at impartially enforcing the law, and prompting retaliation.

To be sure, they do invite political recriminations. Hunt, for example, did not bend to the law quietly. He blamed his downfall on an elaborate “Democratic plot” to force him from office. (He may have borrowed that language from President Richard Nixon, whose presidential library—until it was turned over to the National Archives in 2011—described the Watergate hearings as a “coup” by his rivals; or Ronald Reagan, who declared them a “witch hunt” and a “lynching.”) When Kentucky Governor Ernie Fletcher and a coterie of administration officials were indicted in 2006 for placing loyalists in government in contravention of merit-hiring laws, the governor charged that his predicament was “politically motivated” and “media-driven,” whipping up a victim narrative and galvanizing supporters.

Yet in case after case, blustery language and the abiding support of feverish factions remained just that. Neither in Kentucky nor Alabama, in Maryland nor anywhere else, did high-profile prosecutions plunge the state into a political crisis. Partisan saber-rattling is not new, and it should not scare a democracy into retreating from the rule of law. In Illinois, the first governor to land behind bars was a Democrat, the second a Republican (who was refused a pardon by his own party’s president), and the third a Democrat (who was granted a pardon by the opposing party’s president). This wasn’t because political parties traded turns locking up their opposition, but because the rule of law prevailed irrespective of partisan concerns. In none of the three cases was there any doubt that the governor had not only violated the law, but done so in a way that seriously abused his public perch for private gain.

Skeptics also caution against the unintended consequence of creating martyrs. There is certainly no shortage of anecdotes. Among the more unsettling, in 2017, war criminals from the former Yugoslavia were facing convictions at a United Nations tribunal while being celebrated as heroes back home.

But martyrdom is already a defining feature of this president’s brand. Prosecution would be unlikely to materially increase his appeal on that score among supporters who already view him that way. Instead, and to the contrary, prosecutions could further isolate the president from the political mainstream—which, in the states, is the more typical story. On the other side of successful investigations and prosecutions, political careers have tended to come to an end. In 1998, the Alabama Board of Pardons and Paroles controversially pardoned Hunt, who then campaigned for another term. He lost his primary with 8 percent of the vote. Governor Edwards lost his congressional bid by a 25-point margin. Governor Blagojevich had intended to run for president, which from prison became unlikely. And so on.

What about senior officials more generally? For instance, the martyr label was quickly given to former National Security Adviser Michael Flynn, who was prosecuted for lying to the FBI and then celebrated in right-wing media. Yet when the Justice Department moved to drop charges against Flynn as a result of political interference, only 30 percent of Americans thought it appropriate; the rest did not, or had no opinion on the matter. In fact, most senior officials enjoy little popular support. More than a third of Americans have never heard of Attorney General Bill Barr, and less than a third have a favorable opinion of him, while half of Americans are unfamiliar with Secretary Wilbur Ross, whose favorability rating is 15 percent. Minatory martyrs-in-the-making these are not. Indeed, after his imprisonment, Attorney General John Mitchell—the senior-most Watergate defendant—largely faded from public view.

Finally, skeptics contend that the public can simply exercise accountability at the ballot box, or, as may happen, via a second impeachment, obviating the need for messy investigations. In November, Americans voted to replace an administration. Those in the prior administration were held to account, this argument goes—and in the most democratically legitimate way: by the people.

But elections are hardly sufficient to prevent the recurrence of wrongdoings. Liberal democracies, to borrow from the political scientist Francis Fukuyama, are not made accountable by elections alone. Plenty of countries regularly hold elections in which one batch of lawbreaking officials is supplanted by another, or in which lawbreakers reenter government through the next election, undeterred. In fact, elections and criminality often cohabit, especially in deeply polarized societies where loyal factions are unlikely to break from their leaders (see, for a sampling, Lebanon, Greece, Kenya, or Thailand). Elections by themselves do not guard against abuses of power.

As testament to this reality, various states prohibit officials from running again for public office if they are convicted of certain types of crimes, either indefinitely or for some period of time. Perhaps most infamously, Louisiana’s former Governor Edwards, who was ineligible to run for state office after spending eight years in prison, campaigned instead for Congress. (He had also easily won reelection for governor after his first legal entanglement ended with a hung jury.) In other cases, states have negotiated their leaders’ permanent exits. As part of a 2017 plea agreement, Governor Robert Bentley of Alabama accepted a lifetime ban on holding public office in the state. Political accountability and judicial accountability are complements, not substitutes.

Of course, a governor is not a president—and our laboratories of democracy are experiments, not crystal balls. Learnings from the states may extend only so far. In fact, none of the risks raised by skeptics are unfounded, and many more exist: Prosecutions can distract from pressing policy priorities or be perceived as punishing political disagreement. They can appear as retaliation to some while leaving others disappointed and disillusioned. And they can reinforce notions of an incorrigibly corrupt Washington, deepening political cynicism by soaking the public with stories of crime. Almost uniformly, they are untidy, expensive, and time-consuming.

There are any number of persuasive reasons to avoid the messiness of enforcing the law when the accused are politically powerful. But the risks of not penalizing dangerous behavior are steeper still, as our organization concluded in a recent report. Wrongdoers maintain or regain positions of power, repeating past offenses. An emboldened culture of impunity encourages would-be lawbreakers to follow suit. And public trust in democratic institutions further erodes, priming the public for more authoritarian alternatives. Avoiding “divisive” investigations in the name of moving on does not solve the problem of a wounded democracy bending toward authoritarianism. It perpetuates it.

If America is to arrest, and quickly, its slide away from democracy, attacks on the rule of law should be met with commitments to the rule of law. As new leadership arrives at the Justice Department after a period of extraordinary political interference, it should first and foremost provide assurances that the White House will not put a thumb on either side of the scale—that it will neither encourage nor discourage investigations and prosecutions. From there, it should follow the words of acting U.S. Attorney for the District of Columbia Michael Sherwin, who when asked whether Trump was under investigation for his role in inciting the Capitol insurrection responded, “We are looking at all actors. If the evidence fits the elements of a crime, they’re going to be charged.”

In other words: the ordinary course of justice.

Certainly, avoiding a recurrence of abuses will require much, much more—including constructing a full and truthful historical record and working toward a shared narrative; addressing noncriminal transgressions such as violations of democratic norms; and laying the groundwork for institutional reforms, such as those that rein in executive power. Both the UN and the U.S. government itself, when advising other countries, counsel that investigations and prosecutions of serious abuses of power are insufficient to guard against their recurrence, but still necessary.

America ought to take its own advice. Democracies do not build robust systems of justice only to abdicate them when they are needed most. As recently unsealed Watergate records revealed, a grand jury had prepared an indictment of President Nixon in 1974, only to be scuttled at the last minute by impeachment proceedings. Across the states, dozens of governors and their associates have not been so lucky. Pursuing alleged criminal misconduct by public officials, no matter how high-profile or powerful, is squarely within the American tradition. We should not break with it now.