Dan McLaughlin argues in the National Review that any attempt to convict Donald Trump of a crime prior to Election Day 2024 is political in nature and therefore illegitimate. To lay out his case, he creates five distinct ways at looking at the issue, all of which he says have some merit:

There are five main schools of thought on the criminal cases against Donald Trump:

  1. Trump is a menace to democracy, as illustrated by January 6 and his effort to overturn the last election, so the government should use the criminal law to prevent him from becoming president again, in order to protect the republic.
  2. Trump is being unjustly persecuted precisely for the purpose of preventing him from becoming president again. That’s lawfare — the weaponization of the criminal law for improper, forbidden purposes.
  3. Trump’s prosecutions are a political setup to get Republican primary voters to rally around him and nominate him while he is under indictment, after which Trump can be politically destroyed with general-election voters once he is convicted.
  4. Trump should be treated like any other criminal defendant and prosecuted as if he isn’t a former president and as if there’s no election going on.
  5. Prosecuting a former president and current major presidential candidate is such a dangerous step that the prosecution should have to meet higher standards than usual in justifying its charges as a matter of law and evidence, and should have to act with greater care in ensuring that the criminal case does not distort or impede the presidential election.

Let’s look at these in turn, with an appropriate sense of sympathy or skepticism. The first point of view is premised on the fact that Trump is a menace to democracy. I actually appreciate that McLaughlin didn’t find it necessary to use recent examples of Trump’s anti-Democratic rhetoric and saw the events of January 6 as sufficient to demonstrate the charge. However, there are two obvious problems here. The first is with how he uses the word “should.”

Consider the Colorado Supreme Court’s decision to remove Trump’s name from the state’s Republican primary ballot. However you feel about it, the Court had to rule one way or the other. At issue was whether Trump is such a danger to the country that he’s ineligible to be a candidate at all, and the basis for that is very tight. It’s not an interpretation of his rhetoric or an evaluation of his political extremism, but solely a determination on whether he took an oath to protect the Constitution and then waged an insurrection or rebellion against the government. If he did, he’s ineligible, and in that sense the courts have an obligation to protect the Republic by enforcing his ineligibility. But the key is that the 14th Amendment of the Constitution is taking the politics out of it. It’s not that the courts “should” protect against the menace of Trump but that they “should” uphold the Constitution.

The second problem here is that the point of view is too pinched. The criminal cases, which are highly varied in their details, are not being brought solely or even primarily to prevent Trump from being elected president. They are real crimes, some of the most serious ever alleged, and their importance transcends the individual who committed them. A failure to bring charges would send a message and set a precedent that these types of behavior are permissible in a future president. We can quibble about the timing of the cases, but not on their purposes.

And this pretty much addresses the flaws in the second point of view, which is that “Trump is being unjustly persecuted precisely for the purpose of preventing him from becoming president again.” Just considering the Mar-a-Lago charges of mishandling highly classified information, it’s clear that there are other purposes. The government needed to secure the documents Trump had sitting on a stage and stacked in a bathroom and basement storage room and office desk. They were thwarted in those efforts. And the case was developed long before Trump declared himself as a candidate for 2024.

The third point of view I would describe as paranoid. The idea is that the Justice Department is trying to help Trump win the nomination because they think he will be easy to defeat. They are doing this by frivolously charging him with the most serious crimes in the belief that that this will make him so popular with Republicans that he will be an unstoppable force in the primaries, but at the same time make him unelectable in the general election. If this were truly the case, and these charges are trumped up and frivolous, then the DOJ should be very worried about getting convictions. Their incentive would be to encourage delay so that any chance of acquittal and vindication for Trump before the election is taken off the table. This theory also depends on Republican voters responding in the worst conceivable way, which might be a good bet but is really not what anybody wants to see. The truth is, the DOJ and the establishment more broadly wants the American public to abhor criminal behavior, not dismiss it and attack the prosecutors.

The fourth point of view is that “Trump should be treated like any other criminal defendant and prosecuted as if he isn’t a former president and as if there’s no election going on.” In one sense, I think everyone pretty much agrees with this. There should be one law for everyone. But there’s a public interest in this case that is indisputable. Voters should, if at all possible consistent with Trump’s rights as a defendant, know the facts of these cases and the jurors’ determinations before they go into a ballot booth to cast their vote. McLaughlin doesn’t dispute that Trump is trying to prevent the public from having this information, but he argues that he’s within his rights to do so. And that’s true. Seeking delay for strategic reasons is the right of any criminal defendant, but the judges also have a right to take this motive into account. Delay should be offered for valid reasons only, almost exclusively to provide the defense adequate time to prepare. Any additional time should be denied, particularly if it harms a clear public interest. Also, McLaughlin doesn’t seem to realize that in arguing that this standard isn’t possible because the trials are inescapably political, he’s assuming the outcome of these trials will politically benefit Trump’s opponents. In other words, any desire for the people to know the facts and outcomes is politically-motivated and only from one side. If Trump were innocent and the charges unjust, the opposite would be true.

The fifth and final point of view contrasts directly with the fourth in arguing that Trump should not be treated like any other defendant because he’s a leading presidential candidate. And there’s plenty of precedent for holding off on a prosecution of a political candidate if it is likely to have a big impact on the outcome of an election. What should be pretty clear, however, is that every delay Trump causes to his trials brings the court dates closer to the election. If they are unresolved by Election Day, they will still have an impact. It’s easy to use this kind of argument to say that once Trump announced himself as a candidate, he should have been immune to prosecution until after the election, but that’s a preposterous proposition that would incentivize criminal politicians like Bob Menendez and George Santos to run for president.  In reality, Attorney General Merrick Garland responded to Trump’s candidacy by immediately appointing Jack Smith to take over the case. He recognized that it was a problem for Biden’s Justice Department to investigate and charge a likely political opponent and he did about the only thing he could to create some separation and distance. This wasn’t really required and many criticized the decision at the time as unwarranted, but it was at least a nod to this fifth point of view. McLaughlin thinks the circumstances demand “higher standards than usual in justifying…charges as a matter of law and evidence,” and I might agree with him. But an attempted coup provides the higher standard of justification, as does hoarding the nation’s most sensitive secrets in publicly accessible spaces. As for the evidence, I’m sure the prosecutors were mindful of how strong the evidence needs to be to secure a conviction of a man like Trump, but that’s up to the jurors to decide.

Overall, the problem with McLaughlin’s piece is that he argues that the prosecutions are inescapably political and therefore illegitimate. When the president of the United States loses an election and attempts to stay in power through violence, there really is no way to deal with that doesn’t have a political component, but that means nothing on the merits. Should we allow it? Should we prosecute it right up to the point that the ex-president decides to run again, and then drop it?

I mean, can we please get serious in this country?

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