By Steve Huntley
Aug. 11, 2022
Could former President Donald Trump get a fair trial if criminal charges were filed against him?
That question is less and less a theoretical or speculative one, especially now that the FBI has raided Trump’s Florida home, the first-in-history federal police agency search of a former president’s residence.
This FBI raid was said to be focused on whether Trump had classified files from his days at the White House that he should have turned over to the National Archives. But most speculation about potential criminal proceedings against him has centered on his role in the Jan. 6 riot at the Capitol.
Attorney General Merrick Garland has been under pressure to indict Trump for the riot at the Capitol and he makes no secret that an investigation is under way into who might be criminally responsible for the Jan. 6 upheaval. So, a search to get classified documents would be another avenue to get at Trump, unless the FBI was looking for papers that have something to do with the riot.
Now that he’s ordered this raid, an even more momentous decision faces Garland: Whether he will become the first attorney general in American history to launch criminal proceedings against a former president — of the opposition party.
Or, as Republicans and others see it, Garland is targeting a prominent political enemy of his boss, President Joe Biden, over events stemming from Biden’s election victory over Trump, who may again run against Biden in 2024. Unprecedented is hardly the word for this.
Many Americans see this as the work of the Deep State, not in Turkey, but in Washington, as public confidence in American institutions continue to plummet.
The raid understandably has been met with suspicion and fury from millions of Americans who voted for Trump in 2020. Imagine the reaction to an actual indictment.
But no person is above the law, declared Garland in discussing the Jan. 6 riot.
No person is above the law, but no one should be subjected to a politically tainted prosecution. Garland acknowledged as much in saying that holding anyone criminally responsible for the riot must be done “in a way filled with integrity and professionalism.”
But can Garland claim his Justice Department meets that standard?
Garland refused to prosecute the demonstrators who tried to intimidate Supreme Court justices at their homes, a violation of federal law. Garland couldn’t be motivated to do his job even after an armed man saying he intended to assassinate Justice Bret Kavanaugh was arrested outside the jurist’s house.
These attempts at intimidation were the product of progressive rage over the high court’s decision to overturn the Roe vs. Wade abortion ruling. Garland, by promising lawsuits to protect abortions in states that restrict or ban them, shows that he’s on their side.
So, Justice Department action against Trump would reveal a Democrat attorney general who won’t prosecute those trying to intimidate Supreme Court justices but is ready to put in the docket a Republican leader accused of trying to threaten members of Congress and election officials.
You don’t have to be a Trump partisan to see how that would enrage Trumps supporters as unfair.
And conservatives haven’t forgotten how quickly Garland bought into the school board oligarchy’s absurd charge that parents unhappy with school closures and curriculum might be domestic terrorists. Also, conservatives can see the contrast between the aggressive, harsh, no mercy prosecution of the Jan. 6 protestors and the often lenient or even no prosecution of the Black Lives Matter rioters whose rampages and arson killed a couple dozen people and caused $2 billion in damages.
Furthermore, Trump’s base remembers the FBI resorting to passing on to Congress misrepresentations and lies about the Russian collusion hoax. Now, it’s reported that whistleblowers from the FBI say that during the 2020 election season, the agency tried to discredit as disinformation the disclosure of Hunter Biden’s laptop and the corruption it portrayed.
No wondered Republicans and Trump backers are adopting the words of an old song — you don’t need a weatherman to know which way the wind blows out of the Justice Department and FBI.
But no person is above the law, insist the advocates of the congressional Jan. 6 committee busy coming up with the worst case against Trump.
No one is above the law, but also no man should be denied the right to trial by an impartial jury. Slim hardly describes the chances of empaneling an impartial jury in Washington, the site of any federal trial against Trump. He received only 5.4 percent of the District of Columbia vote in 2020.
And that was before the Jan. 6 riot, Trump’s stolen election claims and the committee hearings that have poisoned an already anti-Trump D.C. jury pool. And poison is an appropriate word given that prominent on the committee is Rep. Adam Schiff, who probably more than anyone else publicly promoted the big lie of Russian collusion for more than two years.
Garland’s defenders might point to the criminal investigation against presidential son Hunter Biden. But that probe is being conducted by a hold-over Trump district attorney in Delaware. Biden couldn’t dump that prosecutor without facing charges he was showing favoritism to his corrupt son.
If Garland doesn’t recognize the suspicions of political motivation a Trump prosecution raises or the challenge of empaneling an impartial jury in D.C., then he is a political animal, not an impartial prosecutor.
Beyond those concerns, a trial would have its own challenges.
Even the Trump-hating New York Times acknowledged in a front-page news article that a guilty verdict on encouraging the Jan. 6 riot would hinge on proving what Trump’s intent was. Given his history of outrageous talk for its own stake, intent would be hard to prove, the Times said.
A guilty verdict that didn’t persuade a significant portion of Trump voters that he was indeed guilty of a crime would be a failure. Worse, it would have the potential to turn Trump into a martyr. God knows what that could lead to.
Either way, a guilty verdict or acquittal, a powerful precedent would be established. Once the door is opened to criminal trials of a former president, it can never be closed.
No doubt many Republicans, embittered by a trial of a man who earned 74 million votes, would never forget it. They’d wait for the opportunity for payback.
The history is clear about how deliberate disruptions of long-established political norms only cause more trouble.
One example: A partisan Republican House Speaker named Newt Gingrich seized on a sex scandal to launch an impeachment of Democrat President Bill Clinton. Voters saw it for what it was, politics. It was doomed to fail and did.
The day came when ultra-partisan House Speaker Nancy Pelosi turned to impeachment — twice — in the Democrats’ war on Trump. The second impeachment came as Trump was headed out the White House door. That was pointless as a government action but rich in political gratification for Democrats.
Another example of what goes around, comes around: Democrats frustrated in their attempts to get appeals court judges confirmed during the Obama administration eliminated the filibuster for most judicial appointments.
When Republicans recaptured the Senate and the White House, they got their payback, ending the filibuster for all federal court nominations. Without the restraint of needing 60 Senate votes for confirmation, Trump appointed three conservative justices to the Supreme Court, enabling the majority that produced the abortion decision so angering liberals.
Politicians never learn that overturning long-standing norms in governing for political purposes comes back to haunt them — and the country. The mind staggers at the potential hazard to the nation’s political health of a prosecution of former president that tens of millions of Americans view as politically motivated.
This time the Democrats’ apparent aim is preventing a second Trump presidential term.
The conventional wisdom is that the Jan. 6 hearings are having little impact on Trump’s base. But who knows? The picture painted of Trump waiting more than three hours before calling for his supporters to get out of the Capitol was not a pretty one.
And polling was starting to show signs that some Republicans, perhaps fed up with Trump’s endless carping about 2020, wanted to put the divisive former president in the rear-view mirror. But that was before the FBI raid that has enraged Republicans and got the attention of independents and even Democrats wary of mixing politics and criminal prosecution.
Still, whatever anyone may think about Jan. 6, it was not an exemplar of the peaceful transfer of power that is fundamental in a democratic republic.
Trump certainly is morally responsible for the trouble that day. The question is whether he broke any laws in promoting his stop-the-steal claims and stirring up the crowd he summoned to Washington to the point rioters stormed the Capitol.
So, yes, no one is above the law. Yes, the country deserves answers about what happened on Jan. 6.
But what’s best for the political wellbeing of the country in coming to grips with that day and Trump’s role in it? A trial shadowed by suspicions among millions of Americans of Democrat political payback against Trump? A Republican former president marched off in handcuffs to jail by a Democrat administration?
Or is there another way to come to a reckoning without tearing the country apart? Should Congress try empaneling a truly bipartisan commission to get to the truth for the American people? How about a special prosecutor, assuming one could be found who would be trusted by Trump’s supporters?
There’s little history to guide us.
No American president has ever been criminally prosecuted. The only remotely similar situation was the Watergate scandal of the 1970s that brought down President Richard Nixon. His successor, Gerald Ford, wisely pardoned Nixon, though Nixon, had he been indicted, would have been prosecuted by a Justice Department headed by an appointee of his own party.
Therein lies one possible way out of the nation’s current dire straits.
Biden could pardon Trump.
By accepting a pardon, Trump would be acknowledging guilt.
By rejecting a pardon, Trump would have made his own decision to throw the dice and take his chances if Garland did prosecute him.
But it would take guts for Biden to issue a pardon. Ford’s poll numbers plummeted after the Nixon pardon, and many believe Ford lost the 1976 election because of it.
A quarter of a century later, the John F. Kennedy Library gave its Profile in Courage award to Ford for the pardon. The late Sen. Ted Kennedy, who had opposed the Nixon pardon, said, “But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.”
As was the case in 1974, this time a chorus of the angry would shout that a pardon would not be justice. And they would complain that it would not even put Jan. 6 behind us, especially if Trump rejected a pardon.
A pardon or a decision by Garland not to prosecute would inevitably leave the ultimate judgment to history.
Any historic assessment of Trump and Jan. 6 would also have to consider the considerable accomplishments of his presidency: A booming economy, pre-pandemic, without inflation that produced historic lows in minority unemployment and real wage gains for lower income workers. Energy abundance. Progress is controlling the border. Three Supreme Court justices. Demands that NATO allies shoulder their share of the cost of defending Europe. No new wars. The Abraham Accords in the Middle East. And the creation of covid vaccines in record time.
But the prospects for history’s judgment clearly don’t favor Trump. Shakespeare’s wisdom rings true: “The evil that men do lives after them; the good is oft interred with their bones.”
About the author:
Steve Huntley is a Chicago journalist now living in Austin, Texas.
For almost three decades Huntley his long and distinguished journalism career in Chicago journalism at the Chicago Sun-Times, where he was a feature writer, metro reporter, night city editor, metropolitan editor, editorial page editor and a columnist for the opinion pages and editor of the Sun-Times Editorial Page.
He has contributed several fine pieces to johnkassnews.com, from his examination of Chicago’s secret political jail housing Christopher Columbus and other politically problematic statues, to Americans suffering from Joe Biden Gas Pain, and “Orwellian Warning: Newspeak, Public Safety and Chicago’s Rising Violent Crime.”
Most recently he wrote about woke newsrooms in “George Sortos and Those Tribune Flies.”
Previous to his work at the Sun-Times, Huntley was a reporter and editor with United Press International (UPI) in the South and Chicago, and Chicago bureau chief, and a senior editor in Washington with U.S. News & World Report.
Huntley is also author of an award-winning book, “Knocking Down Barriers: My Fight for Black America”, by Truman K. Gibson Jr. with Steve Huntley, a memoir of a Chicagoan who was a member of President Roosevelt’s World War II Black Cabinet working to desegregate the military.
It is an honor and privilege to have Mr. Huntley, who spent decades in the news business in Chicago, writing here.