In the end, in fact, perhaps it’s best that Trump isn’t tried before ballots are cast. Electing an accused criminal would be terrible but electing a convicted criminal and granting him the power to pardon himself would be unforgivable, shattering our national image. Better that we go on laboring under the illusion that the greatest country in the world would never stoop to such things rather than face the hard reality.” — Nick Catoggio, “Justice Delayed is Justice Denied,” ~ The Dispatch
Because of my conviction that Trump did indeed commit certain prosecutable high crimes, however I am increasingly disinclined to think he should actually face prosecution for them: puts me in the highly disagreeable position of perhaps being the most pernicious toxic Trump apologist out there, it occurred to me to make a brief post to quell and disabuse everyone I can of the notion, and mainly, for myself, to reconcile my anxiety for the rule of law in America with my personal loathing of Trump, and my belief in his moral responsibility for inciting a violent riot and otherwise attempting to coercively overturn a free election, and hoarding classified documents.
The Hur testimony for me at least, was a clarifying moment. As for me, the classified documents indictment was legally the most airtight, and also the one above all you couldn’t avoid bringing, when Hur came out and revealed Biden to be guilty of virtually the same thing, though he recommended against prosecuting him, it threw my spirits into disillusion. Here again in some eyes, it seems that a Democratic elite is getting the James Comey treatment.
This was bad. This was against the law. This is illegal. But no, nothing really wrong here. He/she is not a bad person. She/he means well. So no. No. Let’s not prosecute him, or her.
I have lamented for months the gross partisanship of certain legal excursions taken against Trump, beginning most recently with the New York indictment, and ending with the insane idea of striking him off the ballot. However against the poor judgment of Trump supporters I meet all the time, where I work in a corporate grocery store, I have been defending the Jack Smith indictments. And as a national security conservative, and as my readers on the Neoliberal Standard well know, I am a fucking hawk, so you can imagine I was taking particular pride in the classified documents indictment. And that Trump hoarded these documents, and lied that he returned them, and we watched him stonewall the National Archives for months, and then later we found out he instructed an aide to hide them— I was disgusted.
My position was that you can whine about how “unprecedented” it is to indict a former president all you want, but Trump is fucked here. No honest person would deny it. And he deserves probably to go to jail for it. Anyone who’s wary of a sitting president indicting the guy who’s also running against him in an election was just lacking clarity in my view. Trump brought this on himself, I would argue. Unless you see it that way, as I see it, then you’re just not being a mature adult. I don’t give a damn how you feel.
Case closed.
However, Special Counsel Robert Hur’s findings throw cold water on that decision to prosecute a president for mishandling classified documents. I’m not arguing that he should have prosecuted Biden like Comey should have recommended to prosecute Hillary. I think Hur came to a very reasonable, sensible and intelligent conclusion. Biden is too old to go before a jury and get a fair hearing for what he did. The structural dilemma Hur unintentionally exposed though, in my opinion, was the Biden DOJ’s decision to indict Trump for something that Biden, whose Justice Department is prosecuting a man who’s running against him in a presidential election, is also apparently guilty of. It’s the moral corruption, the hubris to be exact, in the whole affair.
Drew Angerer Getty Images
To be sure the legal case against Trump, notwithstanding Biden’s mishandling of documents, stands. And there’s actually no comparison between the two. Biden didn’t obstruct justice. Biden didn’t defy the federal government for months to get a search warrant to invade his home. Trump is a narcissist and a crook. But the optic of Biden getting the Comey treatment when it’s his DOJ indicting the man he’s running against when he committed a similar crime, is corrosive for the rule of law which depends on a publicly accepted principle that everyone gets equal treatment before the law. And it shows that Trump’s prosecution though mostly legally sound, and morally righteous, is probably a big even a tragic mistake. If I still sound like another Trump “apologist” or something, please indulge me for a moment.
Just think how we are sleepwalking towards a crisis where half the country won’t accept Trump going to jail if he is convicted, or, if Trump doesn’t go to jail, let alone becomes president and pardons himself, the other half of the country won’t accept him as a legitimate president and for good reason, I would add. I certainly wouldn’t. Also imagine the spectacle of Trump’s DOJ immediately presuming to prosecute Biden for his mishandling of documents as soon as Trump took office among myriad other foreseeable extralegal shenanigans.
I would invite all smart and fair-minded people to consider the peril we could be blundering into when we try rightfully to defend our institutions against people who are primed to disrespect their legitimacy the more provocative the measures we take to defend them become.
For people who think that Trump’s trials can’t move fast enough, or who dismiss the meaning of Hur’s testimony because they think he’s a partisan hack, let alone who fail to take stock of the implications of indicting Trump despite the partisan abuse of the justice system regarding him in so many ways, it’s astonishing to me the utter lack of caution, the lack of imagination that comes with the evangelical zeal to pursue moral justice at any price to save “our democracy.”
— Jay
It's been obvious for a long time now that Jack Smith's prosecutions of Trump are politically motivated—which is not to say that Trump is innocent. As far as the classified documents case is concerned, I believe he's guilty as charged. But he's also entitled to due process, and that's the rub. Smith is desperate to get one of his cases before a jury before the upcoming presidential election. But the right to a speedy and public trial rests with the defendant, not the prosecution, and Smith is trying to flip that script. The fact that he's representing the Biden Justice Department makes the whole performance even more unseemly.
The irony is that this and other exercise in lawfare against Trump may backfire, delivering him back to the Oval Office in November. Just look at the stupid bloody courtroom cabaret in Georgia, where the ridiculous Fani Willis has blown up her own case, which she seems to have regarded as a cash cow to be milked by her and her paramour.
Great article Jay.
How is this not just a long winded appeal for “paying the ransom”? If Trump can’t be prosecuted because his supporters will regard any decision going against him as illegitimate, doesn’t that place him *completely* above the law? And why should justice be denied just to cater to the delusions of those who can’t accept reality? What about the majority of Americans who believe he’s guilty? I don’t think public sentiment should dictate prosecutorial decisions either way. But the implication here seems to be that the sentiments of his supporters *should* because of their demonstrated propensity for violence. Since prosecuting *and* not prosecuting are both likely to be highly corrosive to public faith in the justice system (among entirely different groups of people), how about simply proceeding according to the facts (which you acknowledge are highly incriminating in Trump’s case)?