By Chris Satullo
“When you strike at a king, you must kill him.” – Ralph Waldo Emerson
Democrats frothing at the mouth over Merrick Garland’s “inaction” about the Jan. 6 insurrection would do well to remember that quote from a famous American writer.
Garland, and the Department of Justice he leads, will get only one chance to indict and convict Donald Trump for his plots to steal an election and incite an insurrection. First, though, Garland and his team must decide whether even to take the unprecedented and constitutionally fraught step of indicting a former president – not just former, but also dead set on emulating Grover Cleveland as a “leapfrog” president.
Indicting a former president is a somber, watershed act. As House Republican Adam Kinzinger has said (and standing O to you, Adam, for your recent service to the Republic), you’d never want to set off a cycle where administrations routinely prosecute their predecessors. That, as many have noted, is “banana republic stuff.”
But I’m with Kinzinger in believing that Stop the Steal and Jan. 6 were such unprecedented, presidential attacks on our Constitution that they justify unprecedented steps of accountability.
So, yeah, go ahead and indict Trump. But if the Justice Department does file charges and takes the case to trial, as Ralph Waldo reminds us, it had better not fail.
That’s why, for Garland, slow is better than hasty. Quiet is better than noisy. Buttoned-up tight is way better than speculative and slapdash. But Twitter loves hasty, noisy, and speculative, so progressive Twitter doesn’t have much nice to say about Garland these days.
The Jan. 6 congressional hearings have demonstrated beyond a shadow of a doubt that Trump either knew – or had no excuse for not knowing – that Joe Biden won the 2020 election fair and square, and by plenty. The hearings have presented mounds of evidence on how Trump schemed, raged, and pressured people in the executive, legislative and judicial branches to support his brazen, fact-free assertions – then to help him foil a peaceful transfer of power.
So why, many Democrats wonder, is Garland not ready by now to load Trump onto the tumbrel and cart him to the figurative guillotine?
The Jan. 6 committee no doubt has done a superb job of laying out Trump’s clear dereliction of duty, his violations of his oath and his utter lack of the ethical fiber you want in a president. But the Justice Department has a different task from the committee’s, which has been busily excavating the facts with an eye on future legislation, future elections, and future historians. Also, it’s easier to nail a case when you’ve got forever to edit the video and no defense attorney gets to cross-examine your star witnesses.
Prosecutors, by contrast, must be sure that they can prove beyond any reasonable doubt – to a jury of Trump’s peers – that what Trump did meets the precise, high bar for federal crimes such as wire fraud (for the Big Lie fund-raising scam), obstructing an official proceeding of Congress, conspiracy to defraud the United States, inciting a riot, and/or seditious conspiracy.
News reports about former Trump Administration officials being called to testify before a federal grand jury suggest that the Justice Department may indeed be carefully following the same breadcrumbs the House panel has. So, despite all the fretting, Trump may still stand trial for his sins.
Me, I’d vote to convict the lying sack of lard in a heartbeat. That’s just me.
But let’s linger on that constitutional phrase: “a jury of his peers.” One hopes that no single jurisdiction in all of America contains 12 people who are precisely Trump’s “peer” in terms of megalomania, narcissism, vengefulness, racism, ethical depravity, and prideful ignorance. Still, America does contain 74 million people who voted for the guy in 2020, a majority of whom say they’d do it again.
In any federal judicial district where Garland might bring the case, even in deep-blue District of Columbia, the jury pool will include some MAGA supporters. It would be quite a stroke of luck and skill for prosecutors to get a jury without a single pro-Trump juror, without anyone who voted for Trump and wanted to do so again. And remember, it only takes one dissenting juror to produce a hung jury in a criminal trial. There’d be next to no chance of acquittal in this one, but a hung jury is real possibility.
Meanwhile, you know that Trump, his captive pundits, his bootlickers in Congress, and his fervent MAGA minions will denounce the trial every step of the way as a witch hunt, a partisan travesty, a scandal without equal in human history. Those clowns would surely trumpet a hung jury as a vindication, a triumph, proof that the baying liberal horde had been exposed as lying cheats.
Of course, a hung jury would mean no such thing, but when has that ever stopped the likes of Trump, Hannity or Gaetz?
The prospect of a hung jury gives good reason to plan for multiple scenarios, but not to demur from prosecution altogether.
Which leads me to this modest, four-point proposal:
- Garland and the Justice Department should not heed those who think the lack of precedent and the “banana republic” concern means Trump should not be indicted.
- Similarly, they should ignore those who say a trial would “divide” the nation or could foster violence from hot heads on either end of the political spectrum. We already have had the violence. Since when have our courts cowered before threats of violence from defendants or their supporters? For sure, we already are grievously divided. Sweeping these historic crimes under the rug will do nothing to heal that. The only possible way – and I’m not promising it’ll work – to cure the fever that has infected formerly sane cohorts of Republicans is to have a jury and judge conclude formally and conclusively, after a fair trial, that Trump committed crimes.
- Thus, Garland and his federal prosecutors should indict and prosecute Trump on all counts where they see a path to conviction.
- And here’s the big twist (as opposed to the Big Lie): President Biden should signal early and often that, while he wants the trial to proceed to a verdict, he is open to the idea of a post-verdict pardon of Trump – if and only if the disgraced ex-president agrees in writing as a condition of the pardon that he’ll never seek elective office anywhere in the United States again. In the case of a hung jury, that conditional pardon would spare Trump from a retrial.
(Remember, even a conviction doesn’t prevent Trump from running again, or winning. Eugene Debs ran for president from jail in 1920, receiving nearly a million votes.)
The “early and often” part above is meant to give indignant Democrats time to move from rage to acceptance before the 2024 election. You know that many on the Democratic left will howl at a pardon, denounce it as a cowardly failure. Maybe giving more time for wisdom of the idea to settle in will spare Biden (or another Democratic nominee) from Gerald Ford’s fate after he pardoned Nixon.
I’m by no means thrilled by my own idea, but sometimes for the good of the nation you must swallow foul-tasting medicine. Talk of a pardon would signal to reasonable Republicans (including potential jurors) that this trial is not about vengeance, but about finding the truth and protecting the Constitution. Their man, after all, would not end up in Allenwood; he could slink back to the comforts of Mar-a-Lago and Turnberry. He just would have to give up his dreams of dictatorship.
Even if followed by a pardon, a guilty verdict would still send a message that would echo through history: Nothing about Stop the Steal or Jan. 6 was OK. It must not be repeated, by any political party. Even a trial ending in a hung jury would put all the key facts, backed by sworn testimony, on the record for all time.
A pardon would show that, unlike a certain vindictive ex-president who lusts to wield the law to bludgeon his foes and reward his sycophants, Joe Biden knows how to put service to country above his personal feelings. America needs to see that in its president again.
To help the nation move past this dark episode, Biden would be showing clemency to a guilty man who deserves no mercy on his own merit, who has been vicious to Biden and his family, as well as to thousands of others.
Biden would be looking past all that for a higher purpose: tamping down the threat of post-verdict violence, reducing the toxic stranglehold this awful, orange-haired man has on the national discourse, enabling us someday to have a political dialogue that isn’t all about him – while making sure this lawless, self-obsessed person never again wields the power of the presidency.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia