Trump’s Attempted Coup Cannot Go Unpunished

Recommending that criminal charges be brought against a former president breaks a taboo in the United States. An indictment would be politically risky — but it would be even more dangerous not to hold Trump accountable.

A full six weeks after he lost the election, Donald Trump tweeted a message that would prove to be especially ominous. It was “statistically impossible” that he had lost the 2020 election, then President Trump claimed, calling for a “big protest in D.C. on January 6th. Be there, will be wild!”

Thanks to investigation as part of court cases and by legislative committees, we now know this message directly contributed to the storming of the Capitol on that day. Posts to various internet sites demonstrate that far-right militias and radical Trump followers interpreted it as a call to action, using armed force if necessary.

Almost 1,000 Prosecutions— but None against the Instigator?

It is thus symbolically powerful that two years later to the day of that tweet, the congressional select committee investigating the Jan. 6 attack on the U.S. Capitol has recommended that criminal charges be brought against the former president. That is far from a criminal indictment, something only the Department of Justice can bring. But it is one step closer to breaking a taboo: a sitting or former president has never faced criminal charges in American history. That’s not because there has never been a reason to do so, but because of the potential consequences to the ability of democracy to continue functioning. The impression that a judicial system controlled by partisan interests may pursue opponents without just cause erodes the perception of a smooth and peaceful transfer of power.

But it is also part of America’s founding myth — emerging from the fight against the British monarchy — that no one is above the law. By now, nearly 1,000 people have been charged or convicted for their role in storming the Capitol for petty crimes such as trespassing on public property as well as for seditious conspiracy. The person at the center of the events, the instigator and the one who supposedly stood to benefit from it, has not yet been charged with anything.

At the same time, it is clear that the attack on American democracy would never have occurred had Trump not wanted to hold on to power at all costs. The congressional select committee has laid that out in detail with an abundance of evidence. The central conclusion is that the storming of the Capitol was not a protest that got out of hand; it was the final attempt to execute a desperate plan. The former president must have understood that he had lost the election. But he wanted to leave no stone unturned in trying to overturn the results. Because none of those stones gave him what he wanted, the only thing left was the escalation on Jan. 6, 2021.

Attorney General Garland Faces a Dilemma

If Trump is not held accountable, it will legitimize political violence and set a dangerous precedent. The appropriate process under the U.S. Constitution was for Trump to have been convicted on impeachment charges. But the Republican majority at the time refused to let that happen — unlike in the case of Richard Nixon some 50 years ago, when the Republican Party abandoned its president in the face of intolerable accusations. Accordingly, it is appropriate for the House select committee to recommend that the Justice Department bring criminal charges.

But Attorney General Merrick Garland is now facing a decision that is as precarious as it is consequential. Even if the select committee is made up mostly of Democrats, the evidence that it has gathered is abundant and diverse. It would seem to justify an indictment. At the same time, taking such a step would dramatically deepen the country’s political divide.

Garland is aware of these problems, of course; and for that reason, he appointed a special counsel, Jack Smith, a month ago to maintain the independence of the investigation as much as possible. That was also a wise decision. But it will not change the outcome. Trump and many Republicans along with him will portray a criminal prosecution of the former president as a politically motivated witch hunt. It might even help the former president more than it would hurt him. But the potential consequences of his attempted coup going unpunished would be even greater.