march 1928

When I put my hand on the Bible at my inauguration, it did not occur to me that less than two years later, I would have to tell my daughters about a plot against me. But earlier this month, I learned that a multistate terrorist group was planning to kidnap and possibly kill me. Law-enforcement announced charges against 14 people as part of the plot. As jarring as that was, just over a week later, President Donald Trump traveled to Michigan, and when a crowd chanted “Lock her up” after he mentioned me, he said, “Lock them all up.”

I am not surprised. I have watched the president wedge a deeper divide in our country; refuse to denounce white supremacists on a national debate stage; and launch cruel, adolescent attacks on women like Senator Kamala Harris and public-health leaders like Anthony Fauci. And while I won’t let anything distract me from doing my job as governor, I will not stand back and let the president, or anyone else, put my colleagues and fellow Americans in danger without holding him accountable.

In normal times, Americans don’t think much about democracy. Our Constitution, with its guarantees of free press, speech, and assembly, was written more than two centuries ago. Our electoral system has never failed, not during two world wars, not even during the Civil War. Citizenship requires very little of us, only that we show up to vote occasionally. Many of us are so complacent that we don’t bother. Nearly 40 percent of eligible voters failed to participate in the 2016 presidential election; nearly half stayed home for the midterm election two years later. We treat democracy like clean water, something that just comes out of the tap, something we exert no effort to procure.

But these are not normal times. The coronavirus pandemic—which has killed more than 200,000 Americans and sickened millions, including President Donald Trump—has made many voters anxious about going to the polls on November 3. The pandemic has also created new opportunities for Trump and his allies to subvert the election. The warning signs are multiplying: If Trump gets his way, the presidential election on November 3 will not be free and fair. My Atlantic colleague Barton Gellman has laid out an entirely plausible scenario, one in which Trump challenges the validity of mail-in ballots, more numerous this year, and persuades state legislatures to overrule them, imposing an undemocratic result. He reported that Republican Party officials are preparing for this outcome.

In the 240 years since America’s founding, no former president has been indicted for criminal conduct. This isn’t because they were angels—far from it. And it isn’t because post-term indictment is not legally allowed. Instead, it is because Americans don’t like the idea of criminalizing politics. Both parties and the public see the prospect of post-term immunity as a guarantee that the country’s politics will remain civil and that power will transition peacefully from one party to the other. That is what drove President Gerald Ford to pardon Richard Nixon. And it’s one reason why the Office of the Independent Counsel decided not to indict former President Bill Clinton.

The presidency of Donald J. Trump has upended those calculations, and the resistance to post-term investigation may now come at too great a cost. When he leaves office, whether in January or four years later, the next administration or one of the states can and should investigate citizen Donald Trump—a former president whose legal status will be no different from that of any other American. The risk of politicization of such an investigation is far outweighed by the danger posed by failing to uphold our nation’s values. To protect future presidents from retributive investigations once they leave office, however, any investigation should be limited to Trump’s conduct before and after his presidency, not his behavior while he was president. If the findings of such an investigation justify it, prosecutors should indict the former president for violations of criminal law.

Senate Republicans were always going to confirm Amy Coney Barrett to a lifetime appointment on the Supreme Court. Conservative voters wanted it, and the party united around the concept. Republicans “believe voting on this justice is a constitutional duty. The nomination happened. There was time to get it done. So they got it done,” Steven Duffield, a Republican former senior Senate aide, told me. Even the highest-ranking Republican leaders aren’t shy about admitting that this may be the party’s last gasp before losing political power for a while. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Republican Senate Majority Leader Mitch McConnell said during a speech yesterday. The Democrats “won’t be able to do much about this for a long time to come.”

During her confirmation hearings, Amy Coney Barrett argued that the judicial philosophy known as “originalism” should guide judges in their interpretation and application of constitutional principles. Most famously associated with the late Justice Antonin Scalia (for whom Judge Barrett clerked), this idea sounds simple and sensible: In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787. Period. Anything else is “judicial lawmaking.”

In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old (“35” means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn’t say “armed forces”; it explicitly says “Army” and “Navy.” Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.