Josh Marshall has a thoughtful response to my Aug. 14 piece on the Mar-a-Lago raid. Below I try to engage with his points.
Where We Agree
Marshall says that I am right to insist that “it is dangerous for a President’s administration to pursue criminal charges against a predecessor.” But he adds that “[w]hat’s lacking in [my] discussion is any real grappling with the opposite side of the equation.” The opposite side of the equation is “the line past which a President’s lawlessness becomes so pervasive, persistent and dangerous that the risks of acting are outweighed by those of failing to do so.”
I agree that there is such a line. Indeed, I said so in the piece he responds to:
There obviously must be a point where information is so sensitive, and Trump’s disregard for law so extreme, to justify legal process against Trump, even in the current milieu. Otherwise the law is entirely hostage to a former president’s (and his supporters’) self-serving veto—something no legal system can tolerate.
I then explained how I think one should assess whether that point had been reached with the Mar-a-Lago documents episode, without taking a position.
As for my “grappling with the opposite side of the equation,” I have tried to acknowledge very clearly the consequences of giving Trump a pass for convictable crimes:
If Mr. Garland concludes that Mr. Trump has committed convictable crimes, he would face the third and hardest decision: whether the national interest would be served by prosecuting Mr. Trump. This is not a question that lawyerly analysis alone can resolve. It is a judgment call about the nature, and fate, of our democracy.
A failure to indict Mr. Trump in these circumstances would imply that a president—who cannot be indicted while in office—is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction.
I agree with Marshall about the dangers of not prosecuting Trump for convictable crimes. They are extremely high.
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