If you don't prosecute Trump, he will continue committing crimes
This isn't just about the abstract rule of law. Trump is an ongoing danger.
Thanks for checking out this edition of Public Notice. We begin with a piece from Noah about why it’s important for the DOJ to hold Trump accountable, and close with some notes from me. Cheers — Aaron
Following the FBI raid on Trump’s home at Mar-a-Lago, the moral and ethical discussion (at least among people of marginally good faith) has centered on accountability and the rule of law. Most Democrats have argued that if we are a nation of laws, those laws need to apply to everyone, including former presidents. Some centrist pundits, though, acknowledge that Trump broke the law, but worry the FBI raid on his home will enrage his rabid voters, leading to widespread political violence and chaos.
The conversation tends to focus on what Trump has already done and how, or whether, to respond to that. But I think it’s worth thinking about the FBI raid in terms not just of what Trump did, but in terms of what he’s likely to keep doing.
Trump has shown himself a relentless — if bumbling — opponent of the electoral system and the Constitution. He is like a dumb orange Terminator, who won’t stop committing crimes until democracy is dead.
If Trump would just go away, it might make sense to let him — which is basically what Gerald Ford decided to do with Nixon. But Trump will not go away. And that means that his past crimes aren’t done, but are an ongoing part of his effort to commit more crimes. You can try to stop him, or you can let him destroy you. There isn’t a third option.
How Republicans might respond to Trump’s prosecution is beside the point
As any news junkie is aware at this point, the FBI obtained a warrant and duly searched Mar-a-Lago on August 8. They recovered more than 20 boxes of material, including classified items.
Trump and his supporters lie constantly and more or less at random, and the Department of Justice doesn’t comment on investigations. As a result, no one is sure why Trump took the documents or what he intended to do with them. We do know that the National Archives tried to retrieve the documents for months, and that Trump repeatedly refused to give them back. He insisted, “It’s not theirs, it’s mine,” an assertion which — per Trump’s usual MO — is both petulant and factually incorrect.
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It's possible that petulance was the beginning and end of Trump squatting on classified documents. Maybe he just took them because he’s a toddler and hates to let go of anything once he’s grasped hold of it.
That seems to be the operating assumption of commenters like Damon Linker, who bills himself as a “former conservative.” Linker believes that prosecuting Trump is pointless if Republicans believe the FBI’s actions are partisan. For Linker, the reason to hold the former president accountable is to deter future acts of lawlessness. However, he insists:
If only one of the country’s two major parties accepts the legitimacy of prosecuting a former (and possibly future) president, then the rule of law will not be vindicated, only Democrats will think that justice has been done, and no future bad actors will be deterred.
Linker also fears that prosecuting Trump will lead to more civil unrest and political violence — "assassinations, coups, plots, terrorism, riots, insurrections, massacres, bloody uprisings, and elite intrigue and murder.”
We are of course seeing a good bit of that already. At the moment the right is organizing a harassment and stochastic terrorism campaign against Boston Children’s Hospital for providing gender-affirming care. Linker (who has labeled nonbinary pronouns “radical”) insists it will get worse, which I presume means that he fears the right will target people he thinks are important, rather than people he doesn’t care about.
In any case, Linker’s article has been much cited by other serious centrist sorts like Shadi Hamid, and echoed by others in the cohort like David Brooks. They all worry that enforcing the rule of law will backfire. Best to let Trump quietly hold onto classified information lest he encourage his followers to launch attacks on FBI offices. Most of the serious centrists here are foreign policy hawks, but they nonetheless appear to believe that there are some terrorists you should negotiate with.
Linker’s article was published before the Washington Post reported that some of the classified documents Trump was holding onto were related to nuclear security. Nonetheless, Hamid cosigned Linker’s article after the Post’s revelations, and the new information doesn’t seem to have altered the hands-off-Trump-for-the-good-of-democracy argument. But it should have.
Trump is clearly not above trading nuclear secrets for election interference
Again, most responses to Linker et al. have focused on accountability and the rule of law. But even if you think ex-presidents should have impunity to skip through daisies forever no matter their actions in office, it’s pretty clear that you don’t want them clutching nuclear secrets while they are so skipping. Trump had highly classified and dangerous information in his possession that he would not relinquish. The FBI needed to get it back.
Mar-a-Lago, which is an event venue, is a poor place to store nuclear secrets, as Philip Bump explained, deadpan, at the Washington Post. Guests enter regularly without background checks. In 2019, a Chinese spy was arrested in the facility with recording devices. She bypassed security by claiming she was heading to the pool. The government cannot leave nuclear documents where foreign agents can steal them, regardless of whether a former president and his followers want them too. Even if Trump didn’t plan to use the information in nefarious ways himself, the documents were not secure.
But there’s good reason to believe that Trump would use the information in nefarious ways if given the opportunity. There’s extensive evidence that Trump’s 2016 campaign had dangerous contacts with Russian officials. While president, Trump tried to get Ukraine to smear Democratic president Joe Biden by threatening to withhold military aid. Trump has even called for foreign interference in elections on his behalf on national television.
Past evidence makes clear that Trump sees foreign interference as a key part of his election strategy. He was storing nuclear secrets in his house. We don’t know that he was planning to trade those to Putin for a promise of election interference. But given his past history and his general commitment to criming, I think it’s reasonable to suggest that if the opportunity arose, he would take it.
And if leaking classified documents would cause chaos in the run up to an election? Would Trump hesitate to undermine the Biden administration if he could? The question answers itself.
The troubling truth is that Trump wants to be a dictator
Of course, we don’t know that Trump will weaponize national security documents to advance his political career. We don’t know that prosecuting Trump will cause the US to descend into civil war either. The future is always in motion. At a dangerous time, every choice is potentially dangerous.
But it’s important to recognize that prosecuting Trump is not, as Linker derisively suggests, “a graduate seminar in Kantian ethics.” What’s at stake here is more than some abstract commitment to the rule of law. Trump will use any tool at his disposal to gain power. Boxes of top secret nuclear documents are a potentially powerful tool. You take them away from him or you suffer the consequences.
It's important to be strategic in confronting fascism. But being strategic can’t always mean cowering under the couch and hoping the bad guys go away. Trump isn’t going anywhere. He plans to continue to attack democracy. He plans to install himself as an authoritarian dictator. To stop him, we need a better plan than to just let him continue committing crimes.