After Tuesday, the case for Trump to face equal justice is increasingly strong on a moral and retributive basis as well as on a deterrence basis. Given Trump’s repeated invocations of the “
big lie,” there is no reason to think that he has learned any sort of lesson, and he remains popular among his base and continues to be enabled by Republican politicians across the country and in Washington.
The ordinary political process seems unable to deal with Trump, so there is no “adequate non-criminal alternative to prosecution.”
We recognize the radical implications of this last point. It’s essentially a call to allow political considerations to enter into what should ordinarily be completely removed from politics: the weighty responsibilities of the federal prosecutor. But when we’re talking about the president of the United States committing not just crimes but attacking the very foundation of democratic government, there’s no way to cleanly separate law from politics. And while indicting a former president who remains the frontrunner for his party’s presidential nomination will no doubt do immense short-term damage to American political stability and raise some potential
separation-of-powers issues, the alternative—to allow American democracy to be attacked literally from within and from the very top—is even worse.
Trump, as he so often does, has left the country facing a painful dilemma. Attorney General Merrick Garland has no good options, only bad ones. But the bad options are not all equally bad.
While we certainly don’t envy Garland and the difficult decision he has to make, we think that, after Tuesday’s testimony, letting Trump off the hook poses a greater threat to American democracy than does prosecuting him.
