Lock Him Up--and Let Him Run

An important debate has been playing out in recent days on The Bulwark, a national website to which I have been contributing since early June. It came down to this question: Should Donald Trump be tried at the ballot box, or in a court of law?

Merrick Garland's only guiding lights should be the facts and the law.

My two cents: Why can't it be both?

The view that bringing criminal charges against the former president, however warranted, is too fraught with peril was ably argued by Bulwark policy editor Mona Charen. She believes this will galvanize the Trump base, and make it more likely that he will win his party's nomination, and possibly reclaim the presidency.

"As much as we yearn to see evil punished, our overriding consideration should be keeping Trump from the Oval Office," Charen advised in an August 24 post. "If a trial makes his return to power even a fraction more likely, it's not worth the risk."

Charlie Sykes, The Bulwark's editor-at-large, countered that not prosecuting Trump comes with an even greater set of risks. For one thing, it will allow the former president to claim his home was raided and records seized even though he did nothing wrong.

"Trump is going to play the martyr no matter what," Sykes wrote. "Letting him escape prosecution "has long-term consequences for the rule of law, the imperial presidency, and the precedent it would set for political and legal appeasement."

Both Charen and Sykes seemed to be arguing that the decision whether or not to indict Trump for squirreling away documents at his Mar-a-Lago home and refusing to give them back when asked--as well as other behavior for which he deserves to be criminally prosecuted--ought to be made strategically and for reasons that are largely political.

"Those Republicans who might have been inclined to leave Trump behind would be pulled back into his orbit by the centripetal force of the Great Trump Trial," Charen warned in her post. "The right wing infotainment circuit would transform Trump from a fading former leader into the sacrificial figure who is persecuted for his followers."

Sykes, on a podcast he recorded with Charen, also sized up Trump's potential prosecution in terms of its electoral consequences: "A former president who is indicted and convicted of a felony may get the Republican nomination, but I don't think is electable." On the other hand, letting Trump go unprosecuted after raiding his home will allow him to declare that he was persecuted unfairly, again, leaving him "much stronger electorily."

Perhaps. But I would argue that it's wrong to make this decision based on some calculation of its political impacts. Merrick Garland's only guiding lights should be the facts and the law. If, as seems increasingly clear, Trump did commit the offense of mishandling classified documents, and if the Justice Department believes it has the evidence to prove it, then he could be charged. Not prosecuting him for political reasons would be every bit as improper as prosecuting him to achieve a political end.

Similarly, every effort should be made to ensure that Trump is allowed to compete in the electoral process, conducted in as free and fair a manner as the GOP's vote-rigging efforts allow. He should not be able to proclaim that he would have easily won the 2024 election--despite all the reasons he lost bigly in 2020, plus a bunch of new ones having to do with his attempts to subvert democracy--if only he had been allowed to run. The issue of criminal charges should be decided separately.

In a recent guest essay in The New York Times, Damon Linker, who writes the newsletter "Eyes on the Right," raises the specter of Trump "running for president from a jail cell," which he thinks would increase the viability of his candidacy. "It would be Mr. Trump versus the System. He would be reviving an old American archetype: the folk-hero outlaw who takes on and seeks to take down the powerful in the name of the people."

I dunno. Despite all we have seen over the last few years to call into question the judgment of the American voter, it seems a bit unfair to rule out that a Trump trial and conviction could further turn public opinion against him. Crimes are crimes and proof is proof and perhaps we ought to hold out a little hope that a majority of our fellow citizens can arrive at the rational judgment that this guy does not deserve to be president, as they did last time around.

Let Trump run, even if he must do so from the confines of a prison call, as did socialist Eugene Debs in 1920. Trump, of course, has an actual chance of winning, unlike Debs, who garnered just under a million votes. But the principle is the same: If you have people willing to vote for you, you should be able to run, even if it's from behind bars.

Debs was serving what would be two years of a ten-year sentence after being convicted of violating the Espionage Act of 1917 for an anti-war speech. This, ironically, is the same act that Trump could be charged with violating for his hoarding of presidential papers, the Mar-a-Lago search warrant also sought evidence of obstruction of justice and criminal handling of government records, the penalties for which he increased in 2018, from a misdemeanor to a felony. And he faces possible prosecution for plotting an insurrection and trying to strongarm officials in Georgia into committing election fraud.

In the lead-up to Trump's second impeachment trial, following the Capitol insurrection of January 6, it came to light that, while impeachment requires a two-thirds vote, he could have been barred from ever again holding public office by a simple majority vote of both houses. Section 3 of the 14th Amendment allows this consequence to be imposed on anyone found to have "engaged in insurrection or rebellion against" the Constitution of the United States.

This provision was not invoked then, and it should not be invoked now, no matter what the January 6 committee turns up.

In the case involving the presidential papers, a federal statute says that willfully and intentionally removing official records is a crime that can disqualify a person "from holding any office under the United States." A recent analysis by PolitiFact says some legal scholars doubt that this statute could be used to keep Trump from running for president; at the very least, any attempt to do so would involve protracted litigation.

It would also be the wrong thing to do.

The essence of our democracy is that the American public is allowed to make terrible choices in terms of who leads the nation, and on occasion has. I happen to think the case against returning Trump to power is hugely greater than any argument in favor of a Trump second term. But that's a decision the voters get to make, after all that they have seen and will see.

Let Trump run again. Let him answer to the will of the voters. If a majority of them reject him, again, it will be because he deserves to lose. If a majority of Americans still vote for Trump, after all that has happened, then this nation deserves him. That is the essence of our democracy, the thing Donald Trump has sought so fervently to destroy.