Should Donald Trump Be Prosecuted?

Since "getting away with it" is the essence of authoritarianism, the answer is yes

Should former president Donald Trump be prosecuted for criminal behavior in connection with his attempts to overturn the 2020 election and his role in inciting violence on Jan. 6? What are the risks of taking such an action --and what are the possible consequences of not acting?  

For a century, "getting away with it" has been the bedrock of authoritarianism. Prosecuting bad actors, no matter who they are, is essential to safeguarding our democracy now and in the future. That’s why the Department of Justice’s investigation into Trump’s quest to nullify Joe Biden’s win and install himself in power illegally is opportune.

Wherever illiberal leaders govern, the rule of law is replaced by legal codes and systems that institutionalize violence and corruption. This creates a culture of impunity that attracts the lawless into government service and keeps collaborators loyal to the head of state.

In 1925, after he was implicated in a political murder that threatened to end his political career, Prime Minister Benito Mussolini declared Italy a dictatorship and then proudly claimed responsibility for years of blackshirt violence that had terrorized Italy. "If Fascism has been a criminal association, I am the head of that criminal association," Il Duce stated chillingly. A few months later, he pardoned all political criminals, giving the murderers and rapists who helped him come to power a clean judicial record.

In Chile, the 1973 U.S.-backed coup transformed the law into an ally of state repression, making thousands complicit when torture and terrorist acts became de facto state policy. That's why military dictator Augusto Pinochet pardoned “concealers” as well as “authors” and “accomplices” of crimes committed since the coup. Covering up wrongdoing is always a valued skill when "getting away with it" is the priority.

Former president Donald Trump has had a different fate. His coup failed. Despite the attempts of his co-conspirators in the White House and the security services to burn papers and delete texts, Trump has been unable to control the flow of information regarding his role in the violent breach of the Capitol on Jan. 6.

Given Trump's obsession with maintaining plausible deniability, the revelation that he sought to reach the Capitol on Jan. 6 (he was foiled by his Secret Service) matters. Former White House aide Cassidy Hutchinson testified that there were even conversations about Trump entering the Chamber. This makes sense: Had his coup succeeded, and his authoritarian order come into being, he would have been above the law, no longer needing to worry about his culpability—just like Mussolini and Pinochet.

Insurgents with a Trump “Law and Order” flag lay siege to the Capitol, Jan. 6. Win McNamee/Getty Images

Viewing Jan. 6 in the context of the history of coups underscores the unusual situation we are in. Because the failed coup occurred in a democracy, the coup leader and his conspirators, who include sitting GOP lawmakers and operatives, continue to go about their business, interacting with those they sought to have harmed.

When an unsuccessful coup has targeted an authoritarian leader, the conspirators are promptly jailed or worse (as with the 2016 coup attempt against Turkish despot Recep Tayyip Erdogan). In the case of failed self-coups (Trump's Jan. 6 action belongs to this genre), the leader often encounters sufficient opposition to force him to leave the country, as Guatemalan President Jorge Serrano Elías and Indonesian President Abdurrahman Wahid did in 1993 and 2001, respectively.

In the U.S. case, the party that conspired in the failed coup remains unrepentant. So does the leader, who, far from fleeing the country, is contemplating another run for the presidency.

In weighing the case for prosecuting Trump, some writers mention that taking such action against a former president would be "unprecedented." Yet Trump's whole presidency was unprecedented. He differed from past heads of state of either party in having zero interest in public welfare or consensus politics. His goals were autocratic: amassing power, domesticating the GOP, and having his financial and other personal interests prevail over national ones in shaping domestic and foreign policy.

As for the fear that prosecution might provoke violence among his supporters, Trump's allies would certainly like us to fear that taking action against him could escalate an insurgency. And prosecution could always be used by the GOP and its allies as an excuse to spark rebellion against a "tyrannical" Biden government.

Yet Trump supporters have long been violent on their own initiative. Violent rhetoric is now normalized among sitting GOP lawmakers like Matt Gaetz, and it seems to be de rigueur among GOP candidates. A trajectory to civil unrest exists regardless of whether the DOJ prosecutes Trump or not.

The frightening nature of such scenarios means it might be tempting to do the "safe" thing by leaving Trump alone. Yet the history of authoritarianism shows that appeasing bullies and not acting due to fear of possible future violence merely sets up the conditions for more violence. It allows the bully to feel empowered and righteous in his lawlessness, which triggers more feelings of omnipotence and grandiosity and more reckless actions. Trump's willingness to harm or kill his own vice president should be proof enough of what might await America if he returns to power.

"Presidents who have committed crimes ought not be treated as above the law lest we risk future destabilization of our democracy," states Ruti Teitel, a legal scholar and expert in the field of transitional justice, which deals with the ruination authoritarians cause and how to hold them accountable. "If the evidence we are seeing about what happened on Jan. 6 at the Capitol points to the top, then as a country we cannot look the other way."