It used to be that people on both sides of US politics understood that the bar should be very very very high for the indictment of a major candidate for president or an ex-president, particularly any prosecution for matters that have to do with political acts or actions. This – and I suppose, some sort of integrity – led both sides to hold off. Impeachment/conviction was a substitute, a political process that could serve to remove a president, although it had never actually happened that a president was removed that way, despite attempts, because the Founders had purposely made the bar quite high for conviction in the Senate.
And this was the case even if only because each party thought such an act of prosecution might come back to bite them if the other party ever came to power.
But the Democrats are acting like they have nothing of that sort to fear anymore. And maybe they don’t, whether by hook or by crook. It’s ironic that this indictment stems from the fact that although Trump was claiming that the 2020 election was won by Biden through fraud, he actually knew that of course there was no fraud at all. And yet the indictment serves to indicate to the American people just the opposite – that the Democrats may indeed have committed fraud because this weakly-drawn and apparently politically-motivated indictment makes it clear the Democrats will stop at nothing in their quest for power. So, why not fraud, too?
Today Ann Althouse has a post in which she discusses this article written by Richard L. Hansen that appeared in Slate. Both Althouse and Hansen are (in Althouse’s case retired) law professors, she at the University of Wisconsin and he at UCLA. Here’s an excerpt from Hansen’s piece, which is entitled “U.S. v. Trump Will Be the Most Important Case in Our Nation’s History”:
After nearly a decade of Trump convincing many in the public that all charges against him are politically motivated, he’s virtually inoculated himself himself against political repercussions for deadly serious criminal counts. He’s miraculously seen a boost in support and fundraising after each indictment … One should not underestimate the chances that Donald Trump could be elected president in 2024 against Joe Biden—especially if Biden suffers any kind of health setback in the period up to the election—even if Trump is put on trial and convicted of crimes.
A trial is the best chance to educate the American public, as the January 6 House committee hearings did to some extent, about the actions Trump allegedly took to undermine American democracy and the rule of law. Constant publicity from the trial would give the American people in the middle of the election season a close look at the actions Trump took for his own personal benefit while putting lives and the country at risk. It, of course, also serves the goals of justice and of deterring Trump, or any future like-minded would-be authoritarian, from attempting any similar attack on American democracy ever again.
The whole thing is worth reading in order to get a sense of the mindset of a law professor such as Hasen, who is the head of something called the Safeguarding Democracy Project. The project was officially launched a year ago, and here is part of a description of Hasen and its mission:
… [Hasen is] a prominent election law professor who has criticized voter identification laws and accused Republicans of using the COVID-19 pandemic to keep Democratic voters from voting. In its mission statement, the project claims that Republicans who questioned the legitimacy of the 2020 election were acting in bad faith and that election integrity laws passed after the 2020 election “make it harder for some eligible voters to register and to vote,” threatening “the cornerstone of American democracy.”
I wonder whether Hasen believes what he says or whether he’s just using rhetoric to further his own political ends. I’m not sure which possibility would be worse; they’re both bad enough.
In her blog post, Althouse writes this about Hasen’s Slate article:
It is an egregious abuse of power to criminally prosecute someone for the purpose of educating the public and generating publicity for your political position.
And yet that is what Hasen is advocating, although he also at least seems to think that Trump is actually guilty of the crimes for which he is being indicted, and that they are in fact crimes and not just free speech and following constitutional rules for challenging an election.
One could rephrase that excerpt from Hasen’s piece this way: The American people are just too stupid to reject Trump, so we who know better must educate them. We’ve tried and tried already, including hearings in Congress directed by the Democrats and a few handpicked Trump-hating Republicans, but apparently that didn’t work and the voting public might just elect him again. So in order to re-educate those stupid stubborn voters, we must stage a show trial in order to ram the truth – our truth – down their resistant throats.
Hasen’s essay concludes with this penultimate statement:
But as I wrote last year in the New York Times, the risks to our system of government of not prosecuting Donald Trump are greater than the risks of prosecuting him.
Depends what you mean by “risks” and “system,” Professor Hasen. If you mean risks of incredible disruption and strife, in which at least half of US voters feel disenfranchised and perceive that their favorite candidate was railroaded by his political opponents for naked political reasons, I’d say the risk of prosecution is higher. But if you mean – and this is what I suspect you mean – that the risks are to “our democracy” (“democracy” being what we elite Democrats say it is, which is to keep us in power and get the booboisie to do our bidding, for their own good of course) – then I suppose that you had better prosecute Trump.
Althouse also writes:
I’m not a Trump supporter. I’m a believer in freedom of speech and the rule of law. I deplore the criminalization of politics.
As all Americans – and especially law professors – should. But fewer and fewer seem to hold that view these days.
Althouse then adds:
Hasen proceeds to fret about Trump’s ability to push the trial date beyond Election Day, win the presidency, put his own people in charge, pardon himself, and then “then sic his attorney general on political adversaries with prosecutions not grounded in any evidence.” Yes, that’s a lowly incentive for protecting freedom of speech and the rule of law: You might be able to take out your enemies, but when the tables turn, they are enabled and motivated to come after you. Hasen knows this. He admits it. But he won’t come out and say this prosecution is a terrible mistake.
That harks back to how I began this post, with the old-fashioned idea that such actions can come back to bite you in the end. However, as I also indicated, I don’t think that Hasen or other Democrats who believe as he does ever intend to relinquish power and let such a thing happen. To twist a phrase that Hasen himself used in his essay in regard to Trump, I think Hasen believes that the Democrats have “inoculated themselves against political repercussions” for what they are doing. That is why he not only doesn’t come out and admit that this prosecution is a terrible mistake, he also doesn’t think it. He thinks it’s an absolutely necessary corrective.
