Guest essay: The perils of indicting Trump

By Jack Goldsmith

The evidence gathered by the Jan. 6 committee and in some of the federal cases against those involved in 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 former President Donald Trump?

Jack Goldsmith sees three paths for Merrick Garland (Photo: PBS)

The basic allegations against Mr. Trump are well known. In disregard of advice by many of his closest aides, including Attorney General William Barr, he falsely claimed that the 2020 presidential election was fraudulent and stolen, he pressured Vice President Mike Pence to refuse to count certified electoral votes for Joe Biden during the electoral count in Congress on Jan. 6, and he riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.

To indict Mr. Trump for these and other acts, Mr. Garland must make three decisions, each more difficult than the previous and none with an obvious answer.

First, he must determine whether the decision to indict Mr. Trump is his to make. If Mr. Garland decides that a criminal investigation of Mr. Trump is warranted, Justice Department regulations require him to appoint a special counsel if the investigation presents a conflict of interest for the department and if Mr. Garland believes such an appointment would be in the public interest.

The department arguably faces a conflict of interest. Mr. Trump is a political adversary of Mr. Garland’s boss, President Biden. Mr. Trump is also Mr. Biden’s likeliest political opponent in the 2024 presidential election. Mr. Garland’s judgments affect the political fate of Mr. Biden and his own possible tenure in office. The appearance of a conflict sharpened when Mr. Biden reportedly told his inner circle that Mr. Trump was a threat to democracy and should be prosecuted and complained about Mr. Garland’s dawdling on the matter.

Even if conflicted, Mr. Garland could keep full control over Mr. Trump’s legal fate if he believes that a special counsel would not serve the public interest. Some will argue that the public interest in a fair-minded prosecution would best be served by appointment of a quasi-independent special counsel, perhaps one who is a member of Mr. Trump’s party.

But no matter who leads it, a criminal investigation of Mr. Trump would occur in a polarized political environment and overheated media environment. In this context, Mr. Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70 to 30.

If Mr. Garland opens a Trump investigation and keeps the case — decisions he might already have made — the second issue is whether he has adequate evidence to indict Mr. Trump. The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”

These will be hard conclusions for Mr. Garland to reach. He would have to believe that the department could probably convince a unanimous jury that Mr. Trump committed crimes beyond a reasonable doubt. Mr. Garland cannot rest this judgment on the Jan. 6 committee’s one-sided factual recitations or legal contentions. Nor can he put much stock in a ruling by a federal judge who, in a civil subpoena dispute — a process that requires a significantly lower standard of proof to prevail than in a criminal trial — concluded that Mr. Trump (who was not represented) “more likely than not” committed a crime related to Jan. 6.

Instead, Mr. Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.

The two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.

Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.

If Mr. Garland concludes that Mr. Trump has committed convictable crimes, he would face the third and hardest decision: whether the national interest would be served by prosecuting Mr. Trump. This is not a question that lawyerly analysis alone can resolve. It is a judgment call about the nature, and fate, of our democracy.

A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.

And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude, would last through and deeply affect the next election and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.

Along the way, the prosecution would further inflame our already blazing partisan acrimony, consume the rest of Mr. Biden’s term, embolden and possibly politically enhance Mr. Trump and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.

Mr. Garland’s decisions will be deeply controversial and have consequences beyond his lifetime. It is easy to understand, contrary to his many critics, why he is gathering as much information as possible — including what has emerged from the Jan. 6 committee and the prosecution of the higher-ups involved in the Capitol breach — before making these momentous judgments.

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Publisher’s Note: I choose occasional guest essays that interest me, but publishing them does not necessarily constitute agreement.

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Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.” This essay appeared in The New York Times.

22 thoughts on “Guest essay: The perils of indicting Trump”

  1. Gerald Ford, upon taking office as President following the resignation of Richard Nixon, outraged many (mostly on the Left) by pardoning Nixon of all Watergate-related infractions. But then Nixon disappeared into private life, and a modicum of calm descended — which was critical, owing to the years of agony, discontent, anger, and civil unrest Nixon had brought on the nation. I think the same is needed now: a pardon of Donald Trump (if he is indicted), to end the misery. Does anyone really want to see a former president sent to jail? Really? That would be a horrible precedent and would tear the nation apart. DT is dead, must we abuse the corpse?

    1. The problem with pardon is that Trump could run again and (falsely) claim he was exonerated. And many Trumpsters would believe him because they lack critical thinking skills.

  2. I am not sure what the answer is, except that Trump has gotten away with grift all his life without consequences. The natural outcome of letting a bully get away with his behavior is more of the same kind of behavior. Hence, we are where we are. I understand that it would be a serious act to send this disgusting excuse for a human to prison, but the damage has been done and the deluded will continue their delusion. I’m not sure the nation can be any more divided than it already is. On the one hand it would make him a martyr in the cult’s eyes, on the other, it would once again let him slide the way that he has all his life.
    BTW, before you others here call me a liberal, a progressive, or woke — I assure you I am not. This is NOT a binary world politically, as much as you might like to believe it is.

  3. HAPPY TURSDAY !!!
    Pallie,
    From the start, I knew that this was not your writings. I think that I have ever saw so many “Mr.” used by you in a year.
    This essay reminds me of times in my life, that I had said to my acquaintances that this conversation, topic, would be better served over a leisurely Old Granddad and a cigar. The famous, “what ifs” and the “maybes” and don’t forget the “should haves, could haves and would haves “.
    I think that Mr. Jack Goldsmith either purposely kept his essay purely legal, or he missed – to me – what is the most obvious. POLITICS ! President Trump was tried by congress not once but twice. Both times, he was found – NOT GUILTY. This resulted in further dividing out republic and – dare I say – cost the taxpayer MILLIONS of dollars for what amounted to a dog and pony show.
    Less we forget. Attorney General Merrick Garland is presently doing a ‘bang up job ‘ ! No respect intended. One can only compare him to the previous A.G. in that they both sat in the same office. Attorney General William Barr sat there twice. I don’t believe that that was ever done before and surely, won’t ever happen again. I believe that when President Trump sought out Mr. Barr, the one conversation surely went, “don’t tell me how to do my job. I will follow the Constitution of the United States.”. My words, and I’m sure A.G. Barr’s thoughts.
    I will have to say that we will see this current ‘three ring circus’ taken on the road to play at an arena near you. The far left, socialist dims ( yes dims – not dems ) are determine to crush Trump, his family and everything that he owns. Similar as to what you have in many third world countries. Encourage the wraft of the sitting King, Dictator, ey al, and you will never be heard from again. So, if the circus intotal cost us millions, then going aftger Donald Trump a third time should cost BILLIONS !
    Lastly, Donald Trump, whom I obviously liked as President , is not your normal Businessman/ BILLION AIRE . iI don’t know any billionaires. A few millionaires, and naturally, none are even remotely like Trump. All of these business people that I know will speak intelligently of the man. No excuses, no favoritism, just facts. Possibly, in another time or place Donald Trump would have been a King, probably a dictator.
    With that, I don’t see a pardon and he surely won’t go away quietly.
    Does anybody see how we got to this point in our politics ?
    DRAIN THE SWAMP ! and VOTE THEM ALL OUT !
    Tony

  4. This was a fascinating analysis. However, I fail to see how anyone of intelligence can call these proceeding “political” when EVERY SINGLE WITNESS in them has been a Republican. Every. Single. One. This in addition to having two conservative Republican representatives (check their voting records) on the panel. The words of renowned conservative Republican Judge Michael Luttig should be taken very, very seriously: “Donald Trump and his allies and supporters are a clear and present danger to American democracy.” The Republican Party is completely divided and tearing itself apart thanks to this orange nincompoop. I hope it was worth it.

  5. The primary and general elections will determine Mr. Trump’s fate. Some damage has been done to his image. He has lost the popular vote twice. I don’t see the popular vote total’s changing. Let the American people decide his fate. He may win the presidency back if he can win Michigan, Arizona, PA, Georgia and Ohio. We will see. Have faith in our voting processes.

      1. American Voters can see through the smoke and mirrors. Hoping for a DeSantis & Pompeo republican ticket for the next presidential election. Let’s turn the page and move forward with a better vision of our future. An indictment would be a waste of time and further divide our country.

          1. I will not vote for him next time, hoping for a republican who won’t be so fractious and governs with common sense.

  6. EVERY SiNGLE WITNESS went totally UnCHALLENGED.
    Hand picked to promote the committee’s narrative..

    1. Not “hand picked.” They all had contact with Trump.
      Yes, it is one-sided. With that said, tell us that they were lying under oath, and that it was NOT Trump’s voice we HEARD begging for them to find votes.

  7. I think the question is premature, not necessarily because of lack evidence, but because the first thing one does is go after the little fish. Nixon wasn’t facing indictment until the burglars were convicted, John Mitchell went down, etc.. I think that first you go after the lawyers. It’s become pretty clear that they knew what they were doing. Eastman wanted to be put on “the pardon list.” Giuliani said we’ve got plenty of theories, but no evidence. Then there is the elaborate scheme with the fake electors, backed by the attorneys, to implement the fraud. Start with them to test the case and the defenses–see what evidence they come up as a “defense.” (Juries have little sympathy for lawyers who claim they didn’t know what they were doing was illegal.) Leave Trump in the background as the “un-indicted co-conspirator.” Get a string of convictions, then decide what to do.

    That is, Garland’s first job is to secure some accountability from the people who clearly knew that they were trying to overturn a legitimate election by illegal means–defraud the United States. “Team Normal” has to be vindicated and “Team Crazy” sent to prison. Convict the hitmen first. Save the guy who ordered the hit for later. Convicting Manafort, Flynn and Stone wasn’t particularly divisive, and I don’t think too many would have shed a tear if Bannon had gone to prison for ripping off people who contributed to “build the wall” (his partner went to jail). Nobody’s demonstrating in the streets because Alex Jones is going to be bankrupted over Sandyhook.

    Once that’s done, things may be different. Does Trump throw them under the bus or do these guys throw Trump under the bus?

    In any event, if, after this, as Vince suggests “DT is dead” (I think that is not true yet), maybe letting him off is the right thing to do. On the other hand, like Anthony, I tend to believe “he surely won’t go away quietly.” If so, prosecution is the right thing to do–this time in front of a jury, not some folks making a political calculation as to whether voting yay or nay will keep them in office.

  8. I’m surprised that the committee hasn’t subpoenaed Pence. I’d like to hear what he has to say about Trump & his unconstitutional attempts to stay in power illegally. Trump is the biggest danger to American democracy. He spreads hate ( he is a racist), fear and division. He foments political violence. BTW, he was impeached for trying to extort Ukraine President Zelenskyy, a real leader. Trump is unfit to be president.

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