Indignity Vol. 2, No. 51: Lock Him Up.

THE WORST THING WE READ THIS WEEK™

Can the Justice Department Really Prosecute Someone for Committing Crimes?

"SHOULD THE UNITED States indict former President Donald Trump?" the former George W. Bush administration lawyer and current Harvard Law professor Jack Goldsmith wrote in the New York Times opinion section. It is, Goldsmith wrote, an extremely difficult question—one that requires Attorney General Merrick Garland to balance a number of contradictory impulses, duties, and urges. 

Would it be a conflict of interest, Goldsmith asked, for the attorney general, whose job depends on the president, to investigate and prosecute the president's main political opponent? Could Garland be sure that Donald Trump committed crimes in his effort to overturn the election—and "that the department could probably convince a unanimous jury that Mr. Trump committed crimes beyond a reasonable doubt"? What if Trump claimed "that he lacked criminal intent because he truly believed that massive voter fraud had taken place"? 

And what of the even larger questions? How should Garland weigh "the adverse implications of a Trump prosecution for more virtuous future presidents" or "whether the national interest would be served by prosecuting Mr. Trump"? The attorney general must consider, Goldsmith warned, that "the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations."

It was dithering dressed up as prudence, which unfortunately appears to be the actual, practical position of the Biden administration on the problem of Trump and January 6. Some of Goldsmith's questions or objections are simply silly or pathetic, like the fear that Trump's unprovable mental state would make it impossible to prove he acted with criminal intent. This is a common shibboleth among establishment legal analysts trying to explain—to themselves as much as to the public—why the ex-president's obvious crimes have yet to be treated as crimes. But despite the fundamental unknowability of the human mind, juries manage to match actions to proposed motives every day; as Twitter user @flglmn wrote about another law professor's version of the theory, "he's not a cat."