Down the path of resisting charges against presidential criminality lay lawlessness, the death of accountability and a culture of impunity for the powerful. But, asked the doubters, should we not worry that bringing a political opponent to justice might encourage a cycle of recrimination, an ongoing tit-for-tat use of prosecutorial power against political adversaries?
On Thursday, accountability overcame fear. In bringing the first federal charges ever against a former president, the Justice Department made the less political decision. Special counsel Jack Smith focused solely on the facts of the documents case, on the law and on what Trump allegedly did. “We have one set of laws in this country,” Smith said at a brief Friday news conference, “and they apply to everyone.”
In a devastating 49-page indictment, Smith detailed Trump’s deceptions, carelessness and willingness to save his hide by destroying or hiding documents — even from his attorneys — in, among other places, a shower in a bathroom.
It was the correct, sober and courageous call, but Trump’s apologists immediately cried foul. Never mind that many who denounced the Justice Department had reveled in cries of “lock her up” when Hillary Clinton was Trump’s 2016 opponent. Never mind that Trump himself had argued that Clinton’s mishandling of government documents “disqualifies her from the presidency” and pledged “to enforce all laws concerning the protection of classified information.”
In an outrageous but unsurprising declaration, House Speaker Kevin McCarthy declared it “unconscionable for a president to indict the leading candidate opposing him.”
No. Biden did not bring this indictment. A grand jury did. In one of many ironies of the case, Attorney General Merrick Garland seemed, if anything, a reluctant warrior, plainly anxious about the long-term implications of indicting the former president. He came under fire from some in his own party for moving too slowly against Trump. He did all he could to insulate the investigation from politics, appointing Smith, a political independent, as special counsel and leaving all decisions to him. Biden stayed far away.
The idea that only authoritarian regimes and weak democracies bring charges against former leaders is also mistaken. Former French president Nicolas Sarkozy, for example, was sentenced in 2021 to a year in prison for corruption and influence peddling. Israel’s prime minister, Benjamin Netanyahu, is on trial on bribery, fraud and breach of trust charges.
And Richard Nixon was in sufficient danger of indictment after Watergate that President Gerald Ford, whom Nixon had chosen as his vice president, preemptively pardoned him of all potential crimes. “My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed,” Ford said, justifying a choice that is controversial to this day.
Many of the lieutenants Nixon commissioned in the Watergate break-in and the subsequent coverup were put on trial and jailed. Nixon was not. Otherwise, he, not Trump, could have been the first former president to face charges. And there is one major difference: The Trump chapter is decidedly not closed. The former president is the front-runner for the 2024 Republican presidential nomination.
The parallel investigations of Trump have prompted another question: Is the documents case built around obstruction of justice and violations of the Espionage Act somehow less serious than charges of fomenting an insurrection and trying to overthrow a free election?
It is the wrong question, and not just because the law is the law. In fact, Trump’s intrigues around classified material bring home so many aspects of what has made his public life so odious: his belief that the rules do not apply to him; his propensity for lying; his disrespect for the responsibilities of a president; his treatment of office as a private possession; and his view of foreign policy (and everything else) as a transactional drama revolving solely around himself.
Smith’s decision to bring charges challenges Trump on all these fronts. But our nation is at this tragic point in its history not because of Smith or Garland. It is rooted in a much earlier choice.
Trump has told us who he is throughout his life. The content of his character was obvious the moment he announced his presidential candidacy and brought into even sharper relief during the 2016 campaign. We got to this point because of the workings of our electoral system and because 62,984,828 Americans were willing to take a chance on him even though many of them knew he was flawed. Those flaws have come back to haunt him — and us.
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