Lock Him Up or Not

Yasha Mounk published a pair of essays on persuasion.community.com debating whether ex-President Donald Trump should be prosecuted for crimes he committed in his capacity as President or as a private citizen.

While the two essayists, Michael Walzer and Norm Ornstein agree that there is a long list of criminality surrounding Donald Trump and his associates, they disagree as to how America should respond.

In the first essay “Prosecuting Trump Will Make Peaceful Transitions of Power Less Likely in the Future,” Walzer argues against prosecuting Trump if it means sending him to prison. The basic tenant of his argument is that “prison should never be the consequence of losing a democratic election. Otherwise, we raise the stakes so high that it becomes very dangerous to lose. And who would, then, agree to accept defeat?” In his article, he acknowledges that failing to prosecute a former president for crimes which could result in jail time for any other citizen is morally problematic but “it is the price we pay for keeping the stakes in the democratic struggle for power at a level that does not threaten the survival of the democratic system.”

In the second essay, “Letting Trump Off the Hook Will Give Future Presidents Impunity,” Ornstein agrees with Walzer that there is an inherent conflict in our desire to ensure that all Americans are subject to the same level of judicial scrutiny while simultaneously trying to ensure that the ramification of any criminal activity conducted by the President who has lost an election does not destabilize the peaceful transition of power from the former criminal President to the newly elected President. However, Ornstein acknowledges that “If Trump does leave office without (subsequently) being held accountable for illegal actions that he and his associates have committed, it would establish a frightening precedent. … that a president cannot be prosecuted for misdeeds either while in office or after they have returned to private life…”

Trump has repeatedly demonstrated that the only thing which motivates him is the accumulation of political power and wealth. Thus, if the Office of the Presidency does transfer from Trump to Biden on January 20, 2021, it is irrational to assume that ex-President Trump is going abide by historic norms of ex-Presidential political behavior and expect him to quietly retire to life as a private citizen. 

Given the fact that 40% of Americans are willing to jump off a (political) cliff if suggested by Donald Trump and 85-90% of the Trump Party (formerly Republican Party) are loyal to Trump, he will retain an immense amount of political capital even out of office. 

If Trump and his co-conspirators are not taken to task for their criminal deeds, it can be expected that ex-President Trump will continue his illegal activities and use his political capital to enhance his personal wealth, while he promulgates misinformation and objective lies so as to create division and chaos in America as a means to regain political power either in his own name or for his heir(s) apparent.

So as to reduce the probability of this bleak future, I suggest that Congress and the Biden Administration enact legislation creating a Truth and Reconciliation Commission which is tasked with generating a list of actions taken by Trump (as President or as a private citizen) and his associates which:

  1. would be criminal for any other American citizen or
  2. which are a deviation from the historic norms of political behavior that have been adhered to by all recent American Presidents but are not part of our legal code. (e.g.: President Trump’s firing numerous Inspector Generals who had lawfully investigated or ruled against President Trump.)

The work of the Truth and Reconciliation Commission would be completely transparent: there would be an explicit prohibition against private testimony, all testimony would be publicly televised, and a report must be completed and published for the public within 12 months.

After the Truth and Reconciliation Commission report is created, there are two options:

  1. pass the report on to the appropriate State and Federal Judicial authorities with instructions to prosecute those individuals which are justiciable or
  2. the list of misdeeds should be presented to ex-President Trump and his co-conspirators in a public forum. They will be asked to publicly acknowledge their criminal behavior and their failure to abide by the “historic norms of political behaviors.” If they refuse to participate in the public forum, refuse to publicly admit culpability, refuse to demonstrate remorse, refuse to assure the American public that they will not engage in similar behaviors, and refuse to desist from all future political activity then the TRC will turn over their report to the relevant State and Federal Judicial authorities with instructions that it is the explicit intent of Congress and the Executive Branch that all prosecutable deeds be swiftly prosecuted to the fullest extent of the law and definitively resolved within one year. In this case, justice delayed is justice for Americans denied.

Clearly, the latter option would better educate America, avoid the specter of sending a former President to jail while still guaranteeing the President retains the legal prerogatives which are granted to all Americans.

America’s democracy now hangs in the balance. We can neither allow the criminals to go unpunished nor do we want to implement a process that may further harm America’s now fragile democracy. A TRC which gives the criminals the option of legal prosecution (with potential jail time) vs public contrition seems like a reasonable alternative and would be in the best interest of America’s democracy.

 

Hayward Zwerling

August 25, 2020

 

An abridged version of this post appears on the Persuasion.community website.