This morning, former President Donald Trump announced that he expects to be indicted for his role in fomenting the January 6 Insurrection, an attack on the US Capitol that attempted to disrupt the formalization of President Joe Biden’s victory.
These indictments, if that they prove to be, have been a long time coming.
It’s difficult to evaluate the process for deciding to file charges at the Department of Justice. Many have worried that prosecution of Trump, who remains a candidate for the presidency in 2024, could harm democracy nearly as much as the Insurrection itself. There has also been question about the appropriateness of specific charges against Trump.
The most recent inquiries have involved questions about whether Trump accepted privately that he had been defeated, and the extent to which he helped facilitate a “fake elector” scheme that would have replaced the democratically elected representatives of several states.
The investigation has apparently reached a stage indicating that the Department of Justice believes that it can level credible charges against Trump, and that the peril of not prosecuting the former President would be greater than the danger of indicting him.
January 6 Insurrection
Let’s recall how we got here. President Trump spent the two months between the 2020 Presidential election and the formal counting of the electoral votes attempting to find some way of overturning the verdict of the voters. Advised by a series of sketchy legal analysts, he came to believe that Vice President Mike Pence could disrupt the counting of electoral votes from “disputed” states and allow Trump to remain in office. Trump paired this quasi-legal effort with a rally that led to a direct assault on the Capitol by his supporters. The process culminated on January 6 with an attack that temporarily disrupted the formal counting procedure, but did not overturn the verdict of the election. Trump narrowly delayed a second impeachment by backing down in the face of congressional pressure (including from the GOP), which almost unanimously condemned the autogolpe.
Most Serious Charge Against Trump
Most of the other charges against Donald Trump involve plausible allegations of illegal activity that would put any normal citizen in deep fear of serious jail time. But neither the alleged financial crimes in New York nor the stolen classified material in Florida challenge Trump’s most serious crime; attempting to disrupt the electoral system of the United States in order to remain in power after decisively losing an election. Trump may also face charges in Georgia, where he is alleged to have used the power of his office to disrupt the formalization of electoral results. Had Trump’s effort worked, it would likely have sparked massive unrest across the United States, including potentially severe violence. It certainly would have shaken American democracy to its core.
Why delay prosecution? Some worry that the precedent of prosecuting a viable candidate for the Presidency would have negative long-term political effects. Others worry that the indictments will serve simply to make Trump more popular in his base of support. But of course other countries, even established democracies, regularly prosecute former leaders who have violated the law. And at this point, NOT prosecuting Trump would leave him practically above the law, entitled to commit any crime he wants against American democracy without any useful consequences. This would represent a serious threat to the health of the Republic.
What Next for Donald Trump: Jail
On January 6, Donald Trump attacked the American electoral system with the intent to remain in power in contradiction of the will of the voters. This effort overturned a tradition of peaceful transition of power between parties that had held since 1800. Someone who does a thing like this should go to prison. The folks who facilitated the effort should also go to prison.
Finally, and perhaps most importantly, anyone who would consider voting for a man who would do this in 2024 should carefully check their moral compass, because something ain’t right.
About the Author
A 19FortyFive Contributing Editor, Dr. Robert Farley has taught security and diplomacy courses at the Patterson School since 2005. He received his BS from the University of Oregon in 1997, and his Ph. D. from the University of Washington in 2004. Dr. Farley is the author of Grounded: The Case for Abolishing the United States Air Force (University Press of Kentucky, 2014), the Battleship Book (Wildside, 2016), Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (University of Chicago, 2020), and most recently Waging War with Gold: National Security and the Finance Domain Across the Ages (Lynne Rienner, 2023). He has contributed extensively to a number of journals and magazines, including the National Interest, the Diplomat: APAC, World Politics Review, and the American Prospect. Dr. Farley is also a founder and senior editor of Lawyers, Guns and Money.