But it’s unprecedented...

Just a quick note tonight. I wanted to share something I’ve been thinking about a lot, ahead of the January 6 committee business meeting on Monday. That meeting is expected to produce criminal referrals for Trump and perhaps others. We’ll discuss expectations for the committee’s work tomorrow in The Week Ahead edition of the newsletter.

How many times have you heard someone talk about the possibility of prosecuting Trump and then mention that it’s unprecedented, as though that’s somehow an obstacle to doing the thing?

My thought is, thank goodness what Trump did is unprecedented. Thank goodness it’s not a frequent occurrence for presidents to disrupt the transfer of power when they lose an election. That’s not how our republic works, nor could we be considered in the democratic tradition if it was commonplace.

The fact that prosecuting a former president is unprecedented doesn’t mean DOJ shouldn’t do it. It’s not an argument against doing it. It’s the very fact that what Trump has done is unprecedented that highlights the seriousness of the moment and informs judgment about how dangerous it would be to let him get away without being held to account. No other president has condoned and participated in events designed to interfere with the transfer of power, has told a mob to fight like hell and pointed them toward the Capitol as the vote was being certified by Congress. If prosecuting Trump would be unprecedented, that’s only because what he did to merit it is so unprecedented. Given the seriousness of what Trump did, prosecution for charges that are supported by admissible evidence is essential.

That doesn’t mean we become a banana republic, where the country’s leaders invariably use the criminal justice system to attack their political opponents when they gain power. That sort of corruption of the power of prosecutors is the polar opposite of what a prosecution of Trump would mean.

Part of DOJ’s core mission is to remain above politics, even if that involves investigating and prosecuting political figures in the party of the president, at whose pleasure the attorney general serves. But that wasn’t how Trump’s DOJ worked. He was always, sometimes openly, in search of an attorney general and an FBI director who would serve him, not the people. And when it was apparent he’d lost a fair election, Trump tried to weaponize the Justice Department for political purposes. He entertained the idea of appointing, as acting attorney general, a man singularly unqualified for the job, whose only defining characteristic was his willingness to show slavish loyalty to Trump and the big lie to keep Trump in power. One attorney general, Bill Barr, appears to have resigned just ahead of the end of the administration rather than summon the backbone necessary to shut Trump down. Holding the people who came dangerously close to corrupting the Justice Department and justice accountable is precisely the precedent the country needs to set.

What is most unprecedented here is the ascension of a man like Trump to the presidency. Trump is a lawless man. He is emboldened by escaping accountability, doubling down, as he did, for instance, in calling President Zelinsky on July 25, 2019, the day after the Mueller investigation ended with Special Counsel Robert Mueller’s testimony to Congress. Some people might have taken a moment to reassess, given such a narrow escape. Not Trump, who tried to extort a political favor out of Zelinsky the following day, asking for the production of dirt on Joe Biden, who Trump (rightfully, as it turned out) feared was the most lethal of his potential opponents in 2020. Trump’s plan? Withhold desperately needed security aid Congress had already voted to send to Ukraine to advance his own campaign. In hindsight, Trump’s self-serving abuse of the power of the presidency is even more clear than it was in that moment, with the war in Ukraine demonstrating how corrupt and damaging to both Ukrainian and American interests it was.

A lot has been made of the fact that there are so many firsts involved here, as the committee concludes its work and special counsel Jack Smith amps up his. There is a lot of concern over the fallout if we have the first prosecution of an American president. There is, and should be, not hesitation about such a moment so much as deliberation. If done for the wrong reasons and in the wrong way, prosecutions of presidents or other leaders could be a fast track to the end of democracy. You don’t have to look any further than the chants of “lock her up” when it came to Hillary Clinton to understand that. But that’s not what this is.

Trump’s crimes were committed in public. They were not made up. We heard him spew the big lie, and continue to do so long after judge after judge, including his own appointees, concluded he’d lost the election. We watched him tweet and trigger his supporters online and on the Ellipse the morning of January 6, 2021. We know he took classified documents out of secure channels and stored them at Mar-a-Lago after he left office, because he told us so, even as DOJ tried to keep its investigation under the radar. If Trump is prosecuted, it won’t be for his politics, it will be for his crimes.

Nothing happens without there being a first time for it to happen. The fact that a thing is unprecedented doesn’t make it wrong or unnecessary. Here, it’s the very unprecedented nature of the thing that is so compelling. If we are going to prevent another attack on America, Trump should be prosecuted for the crimes there is sufficient evidence to prove. That’s the best way to make sure that the unprecedented doesn’t become the new normal.

We’re in this together,

Joyce