This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Later, he publishes some thoughtful replies. Sign up for the newsletter here.
Last week, I asked readers about Donald Trump’s legal problems, noting that some observers worry about prosecuting a former president while others insist that no one is above the law in America. Both perspectives resonate with me, but most of you who emailed want Trump to be prosecuted. “There is really no gray area here,” Elsa wrote. “Trump is an American citizen and no citizen is above the law. Period. Full stop. Once we begin making exceptions, it is a slippery slope.”
Dave pointed out that Trump himself increased the legal penalty for what he is alleged to have done:
In 2018, Trump signed a bill making it a felony to misuse classified information, punishable by up to five years in prison. As far as I know, there are no exceptions in the law for U.S. presidents.
Jeff voted for Trump in 2016 and now wants him prosecuted:
Under normal circumstances I’d agree it would be unwise to prosecute a former president. However Trump is a special case: a “clear and present danger” to our democracy. He appears to hold himself and his actions above the law. It’s time for the hammer of the law to come down hard on him. I did vote for Trump in 2016, mainly in staunch opposition to Hillary Clinton. It’s too bad Joe Biden was not of a mind to run at that time. While some of what Trump accomplished in office was positive, his overall demeanor, coupled with the inability of the adults in the room to control him, forced me to vote for President Biden in 2020—the first time I have ever voted for a Democratic presidential candidate.
Harold argued that the Department of Justice has been acting with restraint, not capriciousness:
The former president was repeatedly shown mercy. Protracted discussions with his legal team were unable to yield any resolution. Even the search and seizure were done in such a way as to minimize the spectacle of the FBI serving a warrant at the residence of a former president. If he had not said a word, the public may very well still be oblivious to the search. The authorities showed a degree of patience and mercy that would not have been afforded to many other suspects under a similar investigation.
Dennis regards this moment as a test. Recalling the moment when Trump opined that he could shoot someone on the street, in front of witnesses, and still not lose voters, he commented:
The current fracas over stolen documents at Mar-a-Lago is the final test of that Trumpian assertion. I don’t doubt that his diehard supporters will never find a behavior that puts them off their “dear leader.”
Nonetheless, I think the rest of us have to call his bluff by charging him for this last caper. The man [allegedly] took boxes of classified documents, some of them [reportedly] top secret. By all accounts, the National Archives has spent months patiently trying to get the purloined materials back, only to have Trump and his team grudgingly return some of them and then insist [that the rest were his to take]. At what point do we stop looking the other way and accept that the former president is a liar and a thief? This story doesn’t end here. One reason why Republican politicians are rallying so ferociously to the cause of their party leader is that the more that comes out about this, the worse Trump looks—and by extension, the worse they look for blindly supporting him. I say arrest him and try him.
Paul shares his experience with state secrets:
Having worked in the [Department of Defense] space for 20-plus years, I know firsthand what is required to be able to handle information. There is routine, annual training required, plus agreements to sign that state very explicitly how to do everything. Not only are one’s responsibilities clear, but also what one is supposed to do when seeing others not following those procedures. Knowing all this, I am quite sure Trump was never required to understand these procedures. It is unsettling that his entourage did not report his lack of compliance (or if they did, it had no effect). Knowing that anyone else would be fired from their job and potentially much worse, I see this as just the chickens coming home to roost. This is an open-and-shut case and should be prosecuted, and he should never be granted a clearance again. His intentions are moot. The laws are clear on that.
Chris warns against going easy on ex-presidents:
What would set a bad precedent would be treating Trump any more leniently than a low-level employee accused of the same infraction, for fear that the MAGA world will throw a tantrum. Under the same principle, I could avoid prosecution for robbing a bank if I could credibly threaten to have my friends attack the court. Merely posing the question as you have suggests that what’s supposed to be bedrock principle is in fact negotiable. We have a word for this approach: appeasement. What’s surprising is that some of its chief advocates are conservatives. What was all that talk about “moral clarity”?
Rob wants to pin down folks who oppose criminal charges on prudential grounds:
Should a former president be prosecuted? That’s the same as asking “What laws do not apply to a president?” Unless your answer is “No laws,” proponents of ex-presidential immunity owe it to us to spell out exactly which laws they think ex-presidents can break that the rest of us must follow. Traffic laws? Tax laws? All misdemeanors? All classes of felonies? Of course, we know the MAGA crowd’s answer: “Whatever laws Donald Trump wants to break.” But for the folks who aren’t sycophants of the former guy, which laws exactly are not worth upholding?
But Jaleelah pointed out that simply prosecuting anyone who breaks the law is not a tenable approach, nor the way our system works:
Prosecutors choose not to pursue cases all the time. This isn’t because they’re all soft on crime. It’s because they have to. It can take five minutes to rob a bank. It can take weeks, months, or years to prove that a bank robber is indeed guilty. Crimes will always outpace prosecutions, which means that prosecutors must ensure that they are strategic in choosing which potential perpetrators to pursue. Furthermore, many prosecutors choose not to press certain cases on moral grounds. Many prosecutors in liberal cities have publicly stated that they will not prosecute people charged with seeking or abetting abortions, and in the past, many did not prosecute men charged with sodomy … And if Trump is prosecuted, future presidents could use that precedent to do one of two things: to investigate their opponents for real crimes, or to investigate their opponents on bogus charges.
Still, she believes prosecuting Trump is the right course:
All presidents who commit heinous crimes on the job deserve to face consequences. I have no idea why so many pundits see further prosecutions as a bad thing. “Where do we draw the line?” they say. “Should we charge Obama for bombing civilians in Yemen?”
Yes, we should!
“What if future presidents are too scared to make the split-second decision to bomb civilians because they know they might end up in jail?” That would be a good thing!
Until someone puts forward a plausible scenario in which a president committing a crime benefits the nation without breaking international law, I will continue to believe that every lawbreaking leader should be prosecuted. The second scenario, in which the precedent is used to press bogus charges, is not that scary. It is difficult to frame powerful people for crimes they have not committed. Due process is incredibly thorough, and all former presidents have strong legal teams. Should Donald Trump be prosecuted if there’s strong evidence that he committed a crime?
Yes, it would be the right thing to do.
Alan airs the concern that there are so many laws, most everyone is violating one of them:
If there were a shared belief that our laws are entirely appropriate and reasonable, then the argument for or against prosecuting Trump would rest on the quality of evidence. But it’s complex, largely because of a hidden assumption. The hidden assumption is that our laws are so convoluted that everyone is guilty of something. [By this logic] we know Trump is guilty and we know it was bad behavior with real societal consequences … Yet we still worry that prosecution could result in a precedent that affected a political leader who didn’t do any real damage. A case can be made for prosecuting him, getting the evidence out in the world and evaluated by a jury, and then commuting the sentence. It’s more important that Trump be seen for what he is than for society to exact revenge that could produce damage down the road.
David complicates the controversy by reminding us that a criminal trial will hinge on jurors who bring their own biases:
There is a practical problem for prosecuting even a very strong case of serious misconduct: How can one impanel a fair and impartial jury for a particularly polarizing celebrity and former president? Can 12 such people be found in any jurisdiction? And if so, would anyone trust 12 people who allegedly have no stake in the outcome of such a trial to be capable of rendering a just verdict? Can MAGA affiliation or political party be good cause to excuse a potential juror? One zealot would result in a hung jury.
Any verdict would probably cause great damage to the legal system, because any verdict would be seen as a partisan manipulation, not as impartial justice, by half of the country. Even so, in a serious enough case, the law should attempt to hold even ex- presidents accountable for their unlawful actions. If the legal system is incapable of delivering justice due to the bias of the people, then the country will learn what minorities have always known: Justice for the rich and famous often differs from justice for the rest of us.
Others cast additional doubt on the wisdom of prosecuting. Robin recalled President Gerald Ford pardoning former President Richard Nixon for any crimes he may have committed “and how calming that action was.”
The national peace that resulted was worth much more than a divisive trial for breaking election laws or even burglary, with its unsure outcome. Mr. Nixon had already paid a debt to society in the form of resigning his office, and little more could be exacted from him. Resignation was a unique punishment given his position as president, and the penalty was sufficient. I believe fervently in the rule of law, and am part of the legal profession, but there is a weighing to be done when great matters are at stake, and tearing the country apart over an uncertain outcome was rightly avoided by Mr. Ford.
Recently, a commentator said that electing Mr. Trump to a second term in the next election would incite civil war, which I think is correct. Likewise, bringing Mr. Trump to trial for negligence or malfeasance with classified documents would prolong our current “cold” civil war. Enough. The documents have been recovered; let that be the outcome.
But A. A. counters:
When Gerald Ford pardoned Richard Nixon, he set a dangerous precedent that could, and apparently has, encouraged the belief that presidents are above the law. It was the wrong decision then and could have disastrous consequences for our democracy now and in the future.
Our leaders flushed Nixon quietly, not for his sake but for the country’s image and reputation. In what kind of countries do new presidents jail the outgoing leader? Not Britain. Not France. Brazil, sure. Philippines, likely. Russia, someday. But not the United States. Of course Trump deserves the full tawdry spectacle. But we don’t. Save our face. Just flush him like a sick goldfish—and for God’s sake, stop talking about him.
Actually, Jack is incorrect about France: the former French leader Nicolas Sarkozy was sentenced in 2021 to a year in prison for campaign-finance violations. In 2022, “the Paris Court of Appeal sentenced François Fillon, the former prime minister, to four years in prison, three of them suspended.” (And Napoleon was banished to Elba, though that didn’t work out very well.)
DC points out that Trump’s political ambitions are relevant:
It isn’t Trump’s status as a former president that makes a decision whether to press charges so fraught; it is that Trump has signaled his intention to run again. He is not a retired politician; he remains an active one, and an aspiring second-term president.
The appearance of impropriety—using the legal system to take out a political opponent—would be hard to avoid. A prosecution would also raise questions about the misconduct of other Democratic Party favorites, including Hillary Clinton’s apparent mishandling of classified information and her husband’s alleged sexual transgressions and perjury. There are gradations of culpability involved in comparing that conduct to, say, inciting an insurrection, but inevitable accusations about double standards and the politicization of federal law enforcement would have some basis in fact (even if a weak one) and would further damage the reputations of our political and justice systems. We just haven’t conducted ourselves like a society that believes no one is above the law. So why start now?
If the revelations provided by the January 6 hearings are not enough to deter a second Trump term, then what principles exactly would we be defending by prosecuting him?
Arun argues that, as yet, we lack sufficient information to determine the prudence of prosecuting:
I remember [Democratic Representative Rush Holt of New Jersey] opining in a townhall in 2007 that the suspension of habeas corpus, the torture, and the wiretapping without warrant under George W. Bush rose to the level of impeachable offenses, but that the American people at that time were mostly concerned about the threat of terrorism and less about civil liberties, and would not understand and rally around an impeachment, and so he was against impeachment. He would rather work to make it more difficult to suspend habeas corpus and so on. Something similar holds in this case. The good of the country is what matters. If the crime is grave and the prosecution of Trump will set markers so that no future president will transgress, prosecute away! If the damage sustained is severe, prosecute away. If it turns out that Trump committed severe legal violations but with minor actual damage, take the decision to prosecute much more carefully. With the limited reliable information now publicly available, no meaningful opinion can be had.
C. is skeptical of the case for prosecuting Trump:
No individual, even an imperial president, is above the law, but this investigation is political theater with all sides eager to have a lead role. Proving beyond a reasonable doubt that Trump personally ordered the removal of classified documents or was even aware of his possession will be very difficult (if not impossible). Prosecutors make decisions every day to not pursue cases, because they aren’t significant or are not winnable. In my opinion, this checks both of those boxes, but obviously Attorney General [Merrick] Garland disagrees. As a lifelong conservative who rejects Trump and everything he represents, I am disheartened that this investigation will continue to nourish his narcissism and create a sustained fundraising opportunity for his various PACs.
Alex emphasizes the need for impeccable procedure:
The case against Trump must be airtight, beyond a reasonable doubt, the highest standard of legal scrutiny. There must be boatloads of evidence; the assigned lawyers must have the utmost of their colleagues’ respect; they must show up on time and follow the rules of the courtroom to a T. They must not weasel out of any uncomfortable requirements, and they must CERTAINLY never lie on the record. They don’t need to. The facts in Trump’s case—no matter what he ends up prosecuted for—will speak for themselves.
And Bradlee trusts the process so much that he is in favor of everything that has happened thus far:
I don’t think talking in terms of “precedent” is relevant or useful anymore––not only because we have seen so many precedents broken but because we are in a culture hungry, on both sides of the political spectrum, for a break from the status quo. I’m glad the Department of Justice took action. I’m also glad President Trump is suing the DOJ. We should be acting and then reacting by testing and challenging those actions to see if we made a constructive or ethical choice. The courts are a key way of conducting those tests.
Thanks for all of your emails regardless of perspective. I’ll see you later this week.