On April 2, The New York Times reported something that may have blown any chance of a Trump indictment over the Jan. 6, 2021, protest in Washington, D.C. even though, according to the newspaper’s claim, that is exactly what Joe Biden would like to see. Sometime last year, the Times article alleges, Mr. Biden told his “inner circle” he believed “former President Donald J. Trump was a threat to democracy and should be prosecuted.” As one might expect, the paper cites “two people familiar with his comments” – anonymously, of course – and so the veracity of this claim is open to question. But assuming Biden really did express this desire, the very fact that it is now public knowledge could hamper any potential prosecution – because, regardless of legal considerations, public perception is everything.
At this point, Mr. Biden is quite well known for saying things that are either dead wrong, very unlikely, or entirely impracticable. Just recently, the commander-in-chief asserted that Russian President Vladimir Putin cannot remain in power, even though Putin’s remaining tenure as leader of his country is something entirely beyond Biden’s control. Thus, Trump’s many supporters should probably not concern themselves too much with the possibility of charges being brought against him.
The Specter of Political Vendetta
Flippant or delusional remarks aside, there remain two far deeper issues that would hamper the Justice Department in following through on Biden’s wishes. Never, in the history of the United States, has a former president been indicted for criminal conduct. The reason for this is not so much an absence of such conduct as the great aversion Americans – both private citizens and politicians – have toward criminalizing politics. In the absence of indisputable evidence of some heinous crime, the very idea of a former president being treated like a criminal by his successor from the other party smacks of third-world political vendettas and the terrorizing of opponents by those in power. At best, such action would almost certainly amount to political suicide for the sitting president and, at worst, could take America into unchartered and very dangerous waters.
Another obstacle – and it has become an obstacle precisely because The New York Times chose to make public Mr. Biden’s wish that Trump is prosecuted – is the certainty that perhaps half the country or more would feel an indictment of Trump is nothing less than the DOJ carrying out its boss’s orders.
For much of Mr. Trump’s four years in the White House, Democrats constantly accused the DOJ of being political; alleging Trump’s two attorneys general – Jeff Sessions and then Bill Barr – were acting as if they were the 45th president’s personal attorneys. Trump had turned the Justice Department into a political weapon, Democrats claimed, primarily focused on protecting him from being held accountable for his many alleged crimes.
Biden made a big deal of “restoring” the DOJ’s integrity and impartiality when he came into office. That is quite ironic, of course, since, as the years-long Russian collusion investigation proved, Justice demonstrated neither integrity nor impartiality during the Trump years – and the then-president himself was its target, most of the time, rather than the object of its loyalty.
The Illusion of Impartial Justice
Fast-forward to the Biden White House and the DOJ appears more politicized than ever. First, it went after the Jan. 6 pro-Trump demonstrators even though only a very small number of the tens of thousands who converged on the nation’s capital that day were involved in altercations with the police and relatively few entered the US Capitol building. Still, many hundreds were arrested, and a great number have been incarcerated since then with, apparently, little or no legal representation and no idea of when they might be either charged or released.
Additionally, the DOJ has become obsessed with waging a campaign against so-called white supremacists – which appears to be little more than a dog whistle meaning conservatives in general. The Justice Department even now is targeting American parents who object to their children being indoctrinated with Critical Race Theory. Attorney General Merrick Garland instigated this witch-hunt at the behest of the National School Boards Association. Several states are suing Biden, Garland, and the DOJ over their alleged targeting of and spying on parents who have protested at school board meetings.
The claim that today’s DOJ is apolitical, then, seems incredulous at best. That impartial façade would be shattered beyond repair if the Justice Department indicted Trump on anything less than solid evidence that he had plotted an actual coup. Questioning the result of an election – and even obstructing the certification of a presidential election result – is no crime. Democrats did it in 2016 but Trump’s DOJ took no action. How soon people forget that House Democrats actively sought to prevent the counting of Trump’s Electoral College votes in January of 2017 while, outside in the city, anti-Trump rioters rampaged and burned. Trump did not sic his Justice Department on these people.
According to the Times, Mr. Biden “has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.” The Democrats’ Jan. 6 committee is also applying pressure on Garland to do their bidding. And so, if the DOJ at some point prosecutes Trump, the clear perception will be that Garland has initiated political persecution on the orders of his boss and other Democratic Party leaders. And that would still be the perception even if the DOJ uncovered proof of a plot to overthrow the federal government. Half of America, at least, would view the evidence as fabricated even if it were not.
And so, a very precarious path lies ahead for both Biden and Garland, now that everyone knows, courtesy of The Grey Lady, that the former wants Trump to face criminal charges. There is simply no opportunity for Garland to indict Trump without it looking totally political. The only thing Americans, including Trump himself, have to fear is that the AG and his political overlords have grown so contemptuous of the American people that they no longer care if their motives are questioned.