Prosecute Trump? Not Yet
"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
As is well-known, there is an increasing amount of discussion of the matter/wisdom of prosecuting Trump for any one of a number of crimes he has committed related to his attempts to overturn the results of the 2020 Election (see, e.g., New York Times, several lead articles, June 24, 2022). Without any input from either Vin Diesel or Dwayne Johnson, the pressure to do so and the evidence supporting such an initiative, is increasing, one might say, at a "Fast and Furious" rate.
The debate over whether or not to do so has three sides. First of course are the died-in-the-wool Trumpists in the lay, business, and political communities who either deny that he committed any crimes or take the position that "former-Presidents-cannot-be-prosecuted-for-any-acts-they-did-in-office" or take the position that "you-better-not-do-this-to-him-or-we-will-do-it-to-you-when-we-get-back-in-power."
This latter one is particularly popular with certain Republican politicians, especially, one should think, those who requested a pardon from Trump in his last days in office for any crimes with which they might be charged. That list includes: Matt Gaetz, Marjorie Taylor Greene, Mo Brooks, Louie Gohmert, Scott Perry, and Andy Biggs. (According to [the humorist] Andy Borowitz, "Marjorie Taylor Greene's Request for Pardon Rejected After She Spelled It 'Parton'. ") Of course they didn't commit any crimes, but were asking for a pardon anyway, just to be on the safe side (just like Trump lawyer John Eastman was). In any case, asking for and accepting a pardon is not necessarily an admission of guilt.
The second side in the "try-him-or-not" dispute consists of those, like Prof. Jack Goldsmith (considered a moderately-conservative-but-hardly-off-the-deep-end legal authority), who has written at length about the necessity for Attorney General Merrick Garland being very careful before going down that path because of both criminal justice and political-historical considerations. As Prof. Goldsmith said:
"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."
In sum, this is the "we know he's guilty [perhaps 'as sin'] but you've got to think of what might happen following a conviction" position. This indeed represents a not-infrequent commentary on the political-historical state of the nation, a commentary in which upholding the rule of law has become a matter of political controversy, because in the view of many (including myself) such prosecution(s) could well lead to violence. (Of course, as I have been writing on for quite some time, it is the Republo-fascist Party , especially under the leadership of Trump and the Trumpists, which has brought the nation to this perilous pass.) I shall return to a consideration of this major issue further below.
As it happened, Prof. Goldsmith's column very quickly brought forth a number of responses (in The Times' letters column of June 24, 2022) from academic, legal, and lay authorities disputing the position that Prof. Goldsmith took. They all came down on the side of the importance for the future of the Republic of upholding the rule of law, now, even given the possible political and violent responses which could very well occur in this particular case.
And then there is a third side, which I am putting forth here. Indeed, the threats of violence from the Trumpist, and to a broader extent the Republo-fascist, side are very real. Consider the testimony at the January 6th Committee hearing of the election worker from Georgia about the threats she and her mother and her grand-mother who house was invaded by Trumpists[!] received, which a) presumably had been replicated around the nation against people who simply do not want to talk about it in public, and b) would possibly be of a much worse nature against any citizens and government officials involved in such a trial. For example, who would want to serve on a jury in a trial-of-Trump?
In any case, although the evidence of his guilt made public so far seems to be overwhelming (see, e.g., the trove of evidence that was supplied by former Trump Chief of Staff Meadows before he woke up to what he was doing, and that from the National Archives, which Trump had tried to hide), apparently there is much more to come. See, e.g., the raid on former Assistant Attorney General Jeffrey Clark's home, that that mountain of evidence is gathering, beyond the mound of it that is already in the public domain. But, but, but.
First, there is no guarantee that a jury would find him guilty, no matter what evidence were to be placed before it. A) the Trump defense would hire the most high-powered jury selection team that would work for him (of which I assume there are more than one, if the fee is high enough), which he would surely pay for from the $250 million grift he has accumulated post-Presidency. After all, all he would need is one "not guilty" vote. Second, can you imagine the death threats that would be hurled at that jury both during the trial as well as after it given a guilty verdict (which could result despite the best efforts of Trump's Jury Selection Team). Third, would be the threats of violence in general that would be shouted out all across the country. And so on and so forth.
Fourth, is the one that is for me is the most important one. Let's say that all the violence prevention and protection could be provided, and all of the political threats of "you-do-this-to-us-just-wait-until-we-get-back-into-power" could be strongly attacked (which they would need to be) were Trump to be tried de novo, before any other members of the plot-to-steal-the-election (that is the real plot being planned by Eastman, Giuliani, and etc.) team could be brought to justice, if the Trump Trial were the first one, just imagine what might well happen to a conviction that Team Trump would bring up to the Supreme Court.
Of course, all he would need are five votes. And he just might get them. One would be the husband of someone who has been mentioned in the media as possibly being in the "Stop the Steal" movement. A second would be a "Justice" who thinks that if a word is not in the Constitution, it is not a matter for governmental action at the national level (oops, there goes all Federal government regulation of air and automobile traffic), and then there are the Three Stooges, none of whom would be anywhere near the Supreme Court if it were not for Trump. So that's five.
So (again) how to get around this problem? Well, here's a thought. First, go after the major co-conspirators that we already know about, with the specific aim of getting one or more of them to flip. The list of frequently-mentioned "possibles" in this regard is well-known: Steve Bannon, Anthony Navarro, Mark Meadows, Jeffrey Clark, Rudy Giuliani, Sidney Powell, Jenna Ellis, and of course the two biggest fish out there, John Eastman and "Ginni" Thomas. (Even Clarence might have to recuse himself should a case involving his wife came before the Court. But hey, you never know.) And let's be clear here. The primary objective here is to get one of these biggest fish to flip (which Robert Mueller was never able to do. Only smaller ones.) I could be wrong, but I think that having one or more of these folks testify against Trump could significantly lower both the political and threat-of-violence temperature. At least one can hope.
But for sure we cannot be certain of that. The violence might be just as bad regardless of who would testify against Trump. But if we want bourgeois Constitutional Democracy to survive in the United States, bourgeois justice has to be served.