Despite President Donald Trump’s public statements to the contrary, the January 6th Select Committee has revealed that Trump was advised by his attorney that Mike Pence did not have the power to reject the Electoral College results certifying Joe Biden’s victory. As a federal judge held in March, the “illegality of the plan was obvious.” The continuing revelations from Congress not only reveal the threat that Trump posed to American rule of law, but also underline the danger of inaction against the former president. While prosecutors have held many others accountable for conduct related to the president, he remains untouched. Failure to hold him to equal account threatens the idea of an impartial legal system.
The government prosecuted Trump’s attorney, Michael Cohen, for illegal campaign contributions which he said he made at Trump’s direction. Special Counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election nabbed campaign aides Michael Flynn, Rick Gates, and George Papadopoulos for lying to federal investigators, adviser Roger Stone for lying to Congress, and campaign chairman Paul Manafort for failing to register as a foreign agent and obstruction of justice (as well as other financial crimes). In Manhattan, the district attorney brought financial fraud charges against the Trump Organization and Trump’s CFO, Allen Weisselberg, before abandoning the case and prompting the revolt from his attorneys. And, in the investigation into the January 6th insurrection, the Justice Department has made more than 865 arrests. Some of the government’s defendants allegedly played organizing roles in the Capitol storming, like Enrique Tarrio, former leader of the Proud Boys. However, many appear mere foot soldiers, whose charges arose from being among the crowd that stormed the Capitol, like Jessica Watkins, a bartender from Woodstock, Ohio, Thomas Adams, a former landscaper from Springfield, IL, or Russell Alford, a body shop owner from Hokes Bluff, Alabama.
The one person missing from all of these cases: Donald Trump.
The cottage industry of criminal prosecutions that has sprouted around Trump has barely touched him. While the justice system repeatedly attacks his underlings, he remains free. This inconsistency plagues criminal investigations of Trump in a unique way, but it is emblematic of a larger disease. The American justice system privileges certain defendants, while it over-punishes others and, in doing so, undermines its own existence. Trump is both a symptom and a cause of a rot in America’s vaunted rule of law.
There are serious questions about whether this will ever change. The federal government has reportedly abandoned the illegal campaign expenditures case against Trump, letting Michael Cohen take the fall for his boss. The Manhattan district attorney has indefinitely suspended the financial fraud investigation, pending additional evidence that Mark Pomerantz, a former special district attorney who assisted with the investigation into Trump’s finances, thinks will never come. And Robert Mueller famously refused to opine on whether Trump had obstructed justice, saying that Congress would have to make that determination.
In each case, there were decent reasons for prosecutorial restraint.
The Manhattan district attorney’s case faces a common but real dilemma – there may be probable cause to arrest Trump, but a jury might not find evidence beyond a reasonable doubt to convict him. The intent element in white-collar cases is hard to prove. When do you have enough evidence to show what was in someone’s mind?
White collar trials drain precious resources from the offices that bring them. They are long slogs about complicated topics, and well-heeled defendants have virtually limitless funds to use toward raising reasonable doubt. One juror and it’s all over. In my last trial for DOJ, I was part of a team of three prosecutors trying three Wall Street bond traders for fraud. Over 20 high powered defense attorneys fought us through six weeks of trial; we didn’t lose, but we didn’t exactly win either. Any case against Trump would face an even greater onslaught, and a loss might make the government look inept or overreaching.
This is a particularly acute problem for DOJ in a Democratic administration, which will inevitably encounter accusations of partisanship. The United States has never used criminal enforcement against a former president. There is a fear that if prosecutors do so now, Republicans will see it as a tool to punish a Democratic president in the future. In a world where former U.S. Attorney Chris Christie presented a faux-prosecution of Hillary Clinton at the Republic National Convention to chants of “lock her up,” this is not an unreasonable concern.
The cases stemming from Trump’s campaign and presidency add other layers of complexity. DOJ policy has long held that a sitting president cannot be indicted, but it had brought the illegal campaign expenditures case when Trump was still in office. It could finish the case now, but the evidence is stale and, as a self-professed liar, Michael Cohen doesn’t make a great witness. Mueller also faced the sitting-president dilemma, as well as a very real legal question as to whether a president actually can obstruct justice. The justice system is an executive branch function and the president is the head of the executive branch. Trump’s lawyers argued that the president simply couldn’t obstruct justice. Other former officials have gone even further and held that residents cannot break the law at all – that, in Nixon’s words, “when the president does it, that means that it is not illegal.”
The law has never had to grapple with these questions. To avoid failing a test case, some advocates have come up with creative ways to try to work around criminal prosecution. Mueller punted to Congress. Congress impeached Trump – twice, once even after he was out of office. Others have argued that the government can use the 14th Amendment to the Constitution to bar him from running for president again under the theory that he engaged in insurrection.
But these efforts have largely failed, and none gets to the problem bigger than the one man – whether some people are exempt from the rule of law due to special status or privilege. Years of racial disparities in drug prosecutions told the public the drug laws didn’t apply to white people the same way they apply to Black Americans. The disproportionate killing of unarmed Black men by the police has sent a similar message. Bankers’ impunity for the Great Recession telegraphed that theft on Wall Street would not be treated like theft on Main Street.
And now, Trump.
This skewed system is morally wrong. It is also destabilizing. Studies have shown that law enforcement legitimacy rests on public perceptions of its fairness. A system in which some people are over policed and some people aren’t policed at all will lose the people’s faith. Indeed, it already has.
January 6th offers the starkest example. But it also holds a potential solution. The government’s dragnet has swept up hundreds of citizens into federal prosecutions for trying to stop Congress from certifying the election. Most of the defendants aren’t even second tier executives – they are everyday men and women carrying out their leader’s wishes.
The new evidence makes clear that prosecutors could charge Trump with trying to obstruct Congress. The trick to such a complicated case is to make it as simple as possible. He didn’t riot, but he made clear that he wanted to stop Congress from certifying the election. We have known for a while that while he may have publicly professed that he believed the election was fraudulent, but his own campaign advisors told him he had lost. His attorney general and vice-president recognized this. The new evidence shows that Trump was informed by an attorney that Pence legally could not unilaterally stop the certification of the election. That pulls the rug out of any potential advice of counsel defense. What’s more, Congress has emails and contemporaneous memos detailing all this – the type of evidence that carries great weight with juries. DOJ has achieved conviction of many defendants with much less evidence.
The government would have to contend with a system that has never had to answer whether a president can commit a crime while in office. Simplicity will again be key – the premise of the rule of law is that it rules us all, presidents included. That isn’t a surefire winning argument, and a case against Trump alone will not solve legal disparities. But these questions can only be answered – and the disparities can only begin to repair – by trying, even if it risks failing. Not trying at all means the whole system has failed already.