By Jacob Derin
Revelations this week that the Trump DoJ subpoenaed records from Apple on Democratic members of the House Intelligence Committee are both shocking and entirely unsurprising. This fits into a broader pattern of corruption and fundamental disrespect for the rule of law which defined the Trump era. Hopefully, history will judge it as such.
At the time, the House was looking into the allegations that the Trump campaign had conspired with Russia in its interference in the 2016 Presidential Election. The DoJ subpoenas are just one more example of the administration’s efforts to frustrate the investigations into its conduct during the election.
The Mueller Report, despite its “no collusion” spin by Trump and his allies, detailed a series of efforts by the former President to stall or stop the investigation. Mueller lists 10 such instances of possible obstruction. So it’s hardly surprising that the administration used the subpoena power of the DoJ to further these efforts, but that makes it no less egregious.
Apparently, the administration was interested in finding out who had been leaking damaging information to the press. As part of its efforts to hunt the leakers down, it went after records, not only for top Democrats in the House, but their families as well. One of the targets was a minor at the time.
The whole affair calls into question the longstanding legal opinion against indicting sitting Presidents and the taboo against indicting former ones. After Nixon was forced to resign in disgrace, for instance, he was spared prosecution by a pardon from his successor Gerald Ford.
Ford argued that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”
The logic behind this decision is understandable, and the possibility of politically motivated prosecutions of former Presidents is itself a serious threat to democracy and the peaceful transfer of power. However, taking into account Donald Trump’s unprecedented disruption of that process, disregard of democratic norms and the rule of law itself, the consequences of not prosecuting him would do even greater harm to American democracy.
As the New York Attorney General’s criminal probe into the Trump Organization moves forward with the impaneling of a grand jury, the possibility of prosecution creeps ever closer to reality. These charges, if they ever materialize, will likely be tied to financial and tax crimes committed by agents of the Trump Organization and its leadership, potentially going all the way to the top. But this simply isn’t good enough. In order to reestablish the principle that the President is not above the law, and that corruption in the nation’s highest political office cannot be tolerated, he must be prosecuted for crimes committed while in office.
One consequence of Trump’s decision not to attempt to pardon himself before Jan. 20 is that federal prosecutors still have the option to pursue such charges against him.
After the Jan. 6 insurrection, there can be no doubt that Trump is a catastrophically dangerous force in American politics, and any attempt to prosecute him runs the risk of a violent response by his supporters. But if Mitch McConnell and his party had the force of his convictions when he said on Jan. 6 that the government would not “be intimidated by thugs, mobs or threats,” they would support doing exactly that.
Jacob Derin is a third-year English and Philosophy major at UC Davis.
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