The evidence from the House select committee investigating the Jan. 6, 2021, Capitol insurrection is compelling, even appalling. This week it recommended criminal action be taken against former President Donald Trump for his role — but acting on it will involve controversy and political risk. Nevertheless, there seems no reason the U.S. Department of Justice (DOJ) should not prosecute Trump. The committee recommended prosecution on four criminal charges, which include inciting an insurrection, obstructing an official government proceeding, conspiracy to defraud the United States, as well as conspiracy to make a false statement.
Not every legal expert agrees that DOJ should pursue the charges, partly because prosecuting Trump would set a historic precedent that the nation has avoided for 247 years. No former American president has ever been indicted for criminal conduct. “It isn’t because post-term indictment is not legally allowed,” notes Paul Rosenzweig, a former prosecutor at the Department of Justice and a senior counsel in the Whitewater investigation. “Instead, it is because Americans don’t like the idea of criminalizing politics. Both parties and the public see the prospect of post-term immunity as a guarantee that the country’s politics will remain civil and that power will transition peacefully from one party to the other.”
But those two horses left the barn long ago. Trump ignored the tradition of a peaceful transition of power after rejecting the 2020 presidential election results — and seemed to contribute mightily to the incivility of politics. Rosenberg thinks Trump should not be indicted for crimes while he was president but sums up why we might be conflicted about that, noting “the risk of politicization … is far outweighed by the danger posed by failing to uphold our nation’s values.”
For example, are all of us treated equally under the law? Should the Justice Department validate that in a country of nearly 332 million people, one person could be allowed to ignore our laws? Or that once any politician, corporate executive or wealthy person climbs high enough on the social, political or economic ladder, they are no longer accountable? As Rep. Jamie Raskin (D-Md.) put it during the select committee’s final public meeting, “Ours is not a system of justice where foot soldiers go to jail, and the masterminds and ringleaders get a free pass.”
The Justice Department will have to wrestle with these issues. But beyond possible criminal implications — the rest of us should consider what we’ve learned from the moral and ethical shortcomings of Trump’s presidency. The law is one thing; character is another. Trump did not appear to accept that the powers and privileges of the presidency, and now the ex-presidency, come with enormous responsibilities beyond those described in the Constitution or codified in law.
The Jan. 6 committee has been careful to point out that its findings and DOJ recommendations are “largely symbolic.” But the committee’s work carries much more weight than that. It has revealed the apparent denigration of moral and ethical standards in America. Each president influences the tone and values of society. The committee’s evidence and testimony paint a picture of a president who ignores ethical responsibility and encourages others to do the same, as well as a president with no apparent allegiance to facts.
As a candidate, a president, and a self-celebrated public figure, Trump appears to have lowered the nation’s standards for comity and civility, peaceful discourse and dissent, social responsibility, tolerance, diversity and factuality — all important to a healthy democracy. His 30,573 documented false or misleading claims while president didn’t even seem to diminish his popularity. Yet, we expect others, even children, to be more truthful than that.
From the moment he took office, Trump appeared to mock and emasculate the institutions designed to hold presidents accountable, including the press, the courts, Congress, the Justice Department — and even the government’s inspectors general, whose jobs are to prevent waste, fraud and abuse.
Trump even reportedly fleeced taxpayers during his presidency. For example, one of his organizations earned at least $1.4 million by charging his Secret Service — required to protect him and his family — rates as high as $1,185 a night when they stayed at his hotels during the president’s trips. That was reportedly more than five times the government rate. In addition, Trump charged taxpayers at least $2.5 million for more than 280 visits to his properties while president. Since leaving office, Trump billed the Secret Service more than $40,000 to use space at Mar-a-Largo in the spring of 2021. Taxpayers ultimately paid those expenses.
As ex-president, he seemingly duped his supporters with an appeal for contributions — but donors unknowingly committed to weekly rather than one-time payments, sometimes for even double the amount they intended. After donors and credit card companies complained, Trump and the Republican Party returned more than $77 million to those who contributed.
Finally, and most importantly, we should introspect how “we the people” have let our standards slip so low. When did we become so gullible? When did we become so passive about ethically questionable behavior by those we elect to office? Why have so many Americans been willing to blindly follow such leaders? Why, after all the evidence presented to the House select committee, did 60 percent of Republicans still believe in Trump’s “big lie” about the 2020 election results? Will we insist on severe sanctions against the members of Congress who were arguably involved in stoking the insurrection and in helping Trump avoid impeachment?
If there is a silver lining in these tumultuous Trump years, it’s that he has given democracy a stress test. It reveals weaknesses in our country’s defenses against totalitarianism, our system of checks and balances in government, our collective gullibility, the erosion of social values, as well as the standards to which we hold the people we elect to govern us.
The best outcome of what’s coming would be proof that our democratic Republic can be self-healing. And proof, too, that no one is too big to jail.
William S. Becker is co-editor and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” a collection of more than 30 essays by American thought leaders on topics such as the Supreme Court’s perceived legitimacy. Becker has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.