Some Say the Criminal Justice System Will Save Us From Trump—But Can It?
The "New Big Lie" is a bait-and-switch involving the indictment of Donald Trump.
Having spent nearly a decade working in state and federal criminal justice systems—including as a criminal investigator in the federal justice system in D.C. and a criminal defense attorney in Massachusetts and New Hampshire—I have as many opinions as everyone else about what our justice system is equipped to handle and what it is not.
Right now we have many D.C. politicians, particularly powerful Republicans like Sens. Mitch McConnell (R-KY) and Marco Rubio (R-FL), telling us the appropriate forum for disqualifying a politician from future office is the federal criminal justice system. They sagely aver that if we will just accept that the proper jurisdiction for litigating a President of the United States inciting armed insurrection against the government in the waning days of his administration is the federal courthouse in D.C.—not, say, the chambers of Congress—all will be well. America will be rid of the scourge of Trump.
Except, per usual, they’re lying. But this lie is far more pernicious than many realize.
First, understand while our justice systems can indict, prosecute, and incarcerate citizens for countless statutory crimes, they struggle to do so in a timely fashion—sometimes at all—if a defendant is rich, particularly if he’s also powerful and famous. There are many reasons for this, perhaps foremost among them that prosecutors in the United States are not apolitical. In fact, for reasons passing understanding, we created state and federal justice systems in which the most politically oriented prosecutors flourish—those who avoid pushing cases that are or may become politically unpopular, corner a defendant with powerful allies, or lead to a precedent that disadvantages the already advantaged.
Donald Trump is almost the Platonic case of a prospective federal defendant who, if disposed of in the same way any of the rest of us would be, could destroy not just the professional futures but also the personal lives of anyone who takes him on. Why should an ambitious prosecutor hoping to leverage that career track into some future political office take the risk of becoming a pariah to about half of the voters they may ultimately need to rely upon? Why risk losing a high-profile case someone above you in the hierarchy believes should have been won, and therefore losing your job rather than being vaulted even higher into the ranks of high-visibility public servants? And why do any of this when the very scions of public service you most wish to impress—the folks who work in D.C. and, in that group, particularly those in the White House—have already publicly decided not to pursue any action against Donald Trump, even a slam-dunk campaign finance case in which he remains an unindicted co-conspirator?
Second, the simple fact is that our criminal justice systems have no authority at all to bar someone from future office. Their only option, instead, is to incarcerate people for such a long period of time that they will die before they can run for office again. Is this what McConnell and Rubio would have us think they believe may happen here? That Trump—a seventy-something with no prior record; enough money to delay any case almost indefinitely through frivolous legal action (and a track record of always doing so successfully); at least 74 million supporters who wanted him to be the most powerful man in America not 120 days ago, many of whom (more than half) think he’s currently America’s rightful president; and access to legions of domestic terrorists likely to threaten and perhaps harm any prosecutor or juror who takes any adverse action against him—is going to be not just indicted and prosecuted and caged but for so long his political career will be effectively over? At a moment his popularity within the Republican Party remains well over 70%?
It won’t happen. It would be a miracle surpassing human understanding—and defying hundreds of years of history within the federal justice system—if, in prospective cases in Washington and Georgia, Trump were to be charged at all, let alone successfully prosecuted and then imprisoned. America has no track record of incarcerating a man of Trump’s notoriety, stature, and authority, let alone in a way that incapacitates him for a long period of time. Even the friends of men as powerful as Trump—think Roger Stone, Paul Manafort, or Steve Bannon—consider themselves immune from any long-term consequences for their actions, and history has proven their presumption correct.
Donald Trump has recourses no other federal defendant would have, for instance to convincingly claiming that any prosecution of him is “political,” or having legions of powerful Republicans with ready access to the media saying as much at all hours of the day; he has civilian supporters he can effortlessly marshal to so intimidate any federal prosecutors, investigators, law enforcement officials, judges, or juries pursuing him as to make successfully convicting him (let alone caging him) so distant a possibility that only the most devout left-wing wish-casters can fathom it. Do I wish it were otherwise? Have I argued daily for years that it should be otherwise? Did I and millions of others work in the justice system at various points in our lives in part as an effort to ensure that all defendants are treated fairly, no matter their resources? Yes, yes, and again yes. Which is why I can report that anyone in D.C. now claiming that Trump will be dealt with properly by our legal system is lying to you. Our system isn’t equipped to do it.
Third, we must understand that the only reason men like McConnell and Rubio are pointing toward federal courts in D.C. and Georgia, or the state courts in New York, as the appropriate venues for disposing of Trump post-impeachment, is because they want to (a) distract us, (b) move the goalposts of accountability, (c) remove themselves from responsibility for whatever happens.
Per the Constitution, the body with the power to disqualify an elected official from holding future office is Congress—not the federal courts. We find this power enshrined, in both of its two instances frustratingly vaguely, in both the Impeachment Clause and Section 3 of the 14th Amendment of the U.S. Constitution. In the former case, the disqualification vote requires only a majority of members of Congress, but it remains unclear whether this vote can be taken, during an impeachment proceeding, whether or not the respondent in such a proceeding is convicted. While the issue hasn’t been litigated in the past, to date both Democrats and Republicans have seemed to presume that you can’t be disqualified from future office until you’ve been convicted of having committed malfeasance in your present (or recent) office. It’s an argument that doesn’t explain why the vote threshold required is different in the two instances, or for that matter why senators are allowed to use whatever standard of proof they wish in either of the two inquiries. Even though we know the Constitution is silent on the standard of proof in an impeachment proceeding, politicians have—perhaps to better protect themselves—decided a senator can’t deem the bar for conviction to be higher than the bar for disqualification from future office.
By all rights, the bar should be different, of course.
If, say, the text of an Article of Impeachment, simply by its language, accuses a sitting president of the federal crime of Bribery, as the Article of Impeachment brought by the House of Representatives against Trump in 2020 did, we could imagine a senator—unchecked by any guidance on the matter from the U.S. Constitution—thinking that “conviction” for “Bribery” should require the same standard of proof before the Senate as it does in federal court (“beyond a reasonable doubt,” often thought of as 90% or greater certainty someone committed an act), whereas the comparatively mild civil penalty of being disqualified from future office demands only the lower civil standard (“preponderance of the evidence,” or 50.1% certainty that someone committed an act).
Indeed, whereas conviction for an act of bribery may be seen as an act of retribution and public accountability via shaming, disqualification from office is something else altogether: a matter of protecting the public. We don’t require proof beyond a reasonable doubt to act in defense of national security or the public trust, which is why the FBI has a Criminal Investigation Division (CID) that pursues cases under federal statutes using the beyond a reasonable doubt standard, but then also a Counterintelligence Division (CD) that employs no such standard in any of its covert and public activities—as where national security is concerned, 50.1% proof that a POTUS is compromised by a foreign power (say) would be considered more than enough proof to take dramatic action to protect the country via actions that don’t require incarceration of any person.
Like, say, impeachment.
McConnell and Rubio are hoping America won’t notice the bait-and-switch in all this.
Right now, the Constitution allows the disqualification of an elected official from future office with a simple majority vote and any standard of proof Senate jurors want; meanwhile, the federal criminal justice system McConnell and Rubio tell us must be used to disqualify Trump from future office requires a unanimous jury vote and the highest standard of proof American law recognizes to even convict an elect official—after which conviction that official would still not be disqualified from future office unless and until Congress acted. And how would Congress act? Well, using the same system it could be using right now under Section 3 of the 14th Amendment, should the House or Senate issue a Censure for An Act of Insurrection—an act requiring a simple majority vote in which the members of Congress could employ any standard of proof they wish.
See how that works? The Republicans have just placed an entire superstructure of evidentiary red tape before the American people, and then asked to be thanked for it.
And lest you still think men like McConnell and Rubio are on the level, they helpfully inform us that they’re not by darkly warning that the evidence isn’t there for Trump to be convicted by a federal jury for anything. Donald Trump’s actions were “probably not incitement” under the federal criminal code, McConnell just told America helpfully.
Should we care that McConnell said Trump was “practically and morally responsible” for an act of incitement to insurrection? Of course not. When it’s your son or daughter charged with a crime, believe me, powerful federal officials won’t say to you that your kid is merely “practically and morally” culpable. They’ll try to cage your child. But in the case of a former president, that won’t do. If Democrats really wanted to push this point, they could try to censure Trump for what McConnell has already publicly said the man was “practically and morally responsible” for—remember, McConnell says that he voted to acquit Trump on the jurisdiction question exclusively—and see if Mitch votes the way that he just told all America he would.
Spoiler: he wouldn’t.
This tells us exactly what he, Rubio, and the rest of the Republicans in D.C. are up to in demanding we use the federal courts instead of Congress to get justice for America. Even if a court convicted Trump of an act of insurrection (or something akin to it), any subsequent 14th Amendment vote in the House or Senate wouldn’t get votes from the 43 GOP senators or nearly 200 GOP House members who opposed Donald Trump’s impeachment and conviction for incitement. They’d call such a vote “political theater” and blithely disavow anything they may have previously said about Trump’s culpability.
I’m sick of this.
You’re sick of this.
America is sick of this.
We’re always being implicitly promised, by powerful folks in federal politics and well-respected folks in media, that accountability for the powerful and well-connected may be right around the corner. I spent years answering questions from readers in post-Mueller “Ask Me Anything” sessions on Twitter and Instagram telling anyone who asked that I did not think it likely that any member of Congress or any member of the Trump family or any ally of the now-former president would go to federal prison for crimes connected to Trump’s many scandals, indicating that if it ever happened (which I doubted) it’d happen because some such person—e.g., Rudy Giuliani—had gotten themselves in trouble for side gigs that wouldn’t implicate the Republicans’ deified Dear Leader. Yet all I saw in major media then, and all we continue to see now, is the claim that it has been independent journalists who are always falsely promising action against Trump and his breed of well-heeled crook; the implication is that major-media journalists and national leaders are far more clear-eyed about justice in America.
Really? Then why are McConnell and Rubio implying that the federal criminal justice system is just begging to be used to bag Trump? Why are major-media columnists and analysts heralding the possibility that Trump may be federally tried for his crimes—implying that in doing so he might somehow (no one quite knows how) come to be barred from future office? Why did powerful Democrats warn the House managers in Trump’s historic second impeachment trial to not seek witnesses and wrap up their presentation quickly so that U.S. senators could be “home for Valentine’s Day,” if not because the implication was that nothing could be expected of the Senate and the federal criminal justice system would have to be employed instead—as if that were any sort of viable alternative?
In fact, as Rep. Jamie Raskin (D-MD), the lead impeachment manager, pointed out in a press conference immediately after 57 senators voted to convict Trump of Incitement to Insurrection, based on their public comments a super-majority of senators believed Trump had engaged in an act of insurrection—as some merely, or so they opined, voted to acquit him on jurisdictional grounds. If that’s so, why didn’t the Senate quickly move to to censure Trump for an act of insurrection, thereby triggering Section 3 of the 14th Amendment the moment Trump tries to run for office in the future? Why didn’t even a single senator argue, as noted above, that nothing precludes the Senate from taking a majority vote to disqualify following a majority vote to convict (even when the latter vote doesn’t result in conviction)? Why didn’t the White House declare that its new DOJ will pursue Trump in the SDNY case in which he’s currently an unindicted co-conspirator? Why didn’t Main Justice open an insurrection investigation on the matter of what the president knew and when he knew it? For that matter, why didn’t Senate Democrats seek a delay in Trump’s impeachment trial—when such a delay, to allow for witnesses, was squarely in their hands—in order to gather additional evidence, such as has been compiled here at Proof, that Donald Trump knew beforehand that the events of January 6 would be violent? Why didn’t the White House, or Senate, or House, or anyone in the Democratic Party at the national level at all, call for a nonpartisan or bipartisan commission to investigate the January 6 insurrection—including the ways it might have been directed and/or incited by elected officials including Rep. Mo Brooks, Rep. Paul Gosar, Rep. Andy Biggs, Rep. Madison Cawthorn, Rep. Marjorie Taylor Greene, Sen. Ted Cruz, Sen. Tommy Tuberville, and countless others in Washington?
The answer in each case is the same: when a peer of the nation’s richest and most powerful men and women, of whichever party, engages in an act that any of the rest of us would be locked in a cage for, the inclination is to tell the American people that the proper forum for accountability is a political one if the individual in question is about to face the wrath of the criminal justice system, and that the proper forum is the criminal justice system if the individual in question is on the verge of facing political accountability. There’s always another layer of the onion; there’s always work that—we’re told sadly, but sagely—the critics of the individuals in question haven’t yet deigned to do. Yet somehow no moment of reckoning ever arrives; the daring actions, never before tried but quite possibly available, to demand accountability before the American people are never pursued; the bait is always dangled and switched with the hope that no one without their hands on the levers of power in America will notice.
It is a myth that the justice system can or will be used to disqualify Trump from office.
It is a myth that leaders in D.C. will take truly audacious action to punish their own.
And for those who point toward the 57 votes just cast in the Senate to convict Donald Trump, consider this: with only one or two exceptions (like Sen. Sheldon Whitehouse of Rhode Island), every senator who voted for conviction, and every senator who voted for acquittal—all of them now pointing American voters toward the utility of the rules in place for conviction in the federal criminal justice system—steadfastly refused to entertain witnesses about an armed insurrection against the United States of America. They did so even though every criminal trial has witnesses, and senators were well aware that there were gaping holes in the Insurrection Day (and pre-Insurrection Day) timeline laid out before them. While the House managers didn’t create these holes, they couldn’t and didn’t fill them, either; that’s why the “Question and Answer” period of the trial was so painful to watch for anyone who’s tried a criminal case: neither side could answer any question that pushed even an inch beyond the compelling but oddly superficial case that had already been presented. What was the president doing in the White House as the assault on the Capitol was unfolding? No one could really say. Why did all Trump’s top advisers meet the night before the insurrection at Trump’s private residence in Washington to speak to one of the violent insurrections (Ali Alexander) by telephone? Didn’t come up. And yet those of us who genuinely admire the House managers feel compelled to defend them, not to point out that no attorney would consider the case they excellently presented anything more than the skeleton of a real, criminal justice system–ready case-in-chief.
At every turn during Trump’s impeachment trial, any evidence that could lead to the calling of witnesses was ignored. Every fact-pattern that involved anyone except Trump was turned aside from as a complication rather than an opportunity; if a secret meeting happened at Trump’s private residence on January 5 and involved 20 top allies of the president but perhaps not the president itself, it had to be treated as irrelevant because, as the House managers said thereafter, those witnesses might not have wanted to cooperate—the sort of excuse we would never hear from any prosecutor in a federal case or in any other forum.
But to a certain extent, the managers had a point: we have learned, in the Trump era, that powerful figures like Trump’s former White House counsel Don McGahn can avoid responding to federal subpoenas for over a year and a half; the federal courts let them do it, even as you or I (and I say this as a former federal process server in D.C.) would be arrested within 24 hours for failing to comply with a subpoena. Again, the rules are simply different in “political” prosecutions—and the ways in which they are different always benefit the defendant. Meanwhile, in federal prosecutions generally, when the defendant is just an average citizen, we find over and over again that every practice and procedure is bent in the government’s favor.
All I’m saying is this: don’t be fooled. Root for the criminal justice system to operate on Donald Trump even as you also demand that Congress take aggressive action to protect the country right now. But most of all, don’t be lectured to by people like Mitch McConnell or Marco Rubio, or even some of the steady-as-she-goes members of the Democratic caucus in the House and Senate, who have been dissembling about their courage and audacity in pursuing justice for their peers not just for years but decades.