Skip to content

P01135809

The costs and benefits of prosecuting a president.

Former U.S. President Donald Trump arrives at Atlanta Hartsfield-Jackson International Airport on August 24, 2023, in Atlanta, Georgia, before his surrender at the Fulton County jail. (Photo by Joe Raedle/Getty Images)

We had a minor family quarrel in the Dispatch Slack channel last night.

There were many family quarrels happening across America at that hour, I’m sure. The mugshot for Fulton County inmate P01135809 had arrived shortly before 9 p.m. ET. Reaction on both sides ran hot.

Dispatch family quarrels aren’t like normal family quarrels. In a normal family quarrel, a conservative dad might bellow about witch hunts and politicized justice while his liberal daughter pounds the table, insisting that no one is above the law.

In a Dispatch family quarrel, one side demands that Donald Trump be prosecuted for all of the crimes while the other demands that he be prosecuted for merely some of the crimes.

In fact, our differences are slighter than that. To my knowledge, none of us—me included—thinks prosecuting him in Manhattan for the ancient and comparatively trivial Stormygate scandal is worth the political trouble it’s caused. No one is on Team All of the Crimes.

The divide is between Team Most of the Crimes and Team Some of the Crimes.

We’re unanimous (I think) that indicting Trump for his clownish malfeasance in concealing classified documents is justified, as solid as granite. He’s so plainly guilty and his intentions in deceiving the government were so comically bad that it almost amounts to taunting the Justice Department. It’s one thing to look the other way at criming by a former and maybe future president. It’s another to do it when he’s criming right in front of you.

We also seem to agree that the fake-electors scheme in Georgia requires prosecution. Committing brazen fraud with an eye to forcing a constitutional crisis that would facilitate an autogolpe feels like it should carry some legal consequences, no? And unlike the federal statutes cited in Jack Smith’s second indictment, Georgia’s statutes do seem to squarely encompass the conduct being prosecuted.

Where Team Most of the Crimes and Team Some of the Crimes split is on the advisability of throwing the book at Trump, prosecuting him for anything and everything feasibly related to the “Stop the Steal” plot while glibly pronouncing it good for America. Is it good for America on balance? Are we sure?

Our quarrel was inspired by the clip below of Sarah Palin, whom I’ve always thought of as the John the Baptist of lowbrow right-wing populism. Mistaken by some as a nationalist messiah in her heyday, she turned out to be a herald of the actual messiah who came after her. Last night, irritated by the spectacle of inmate P01135809, she took to musing about civil war.

While Palin was casually threatening Trump’s enemies with violence, oblivious “Resistance” types were popping the virtual champagne on social media and making dopey memes out of Trump’s mugshot.

His ongoing ordeal at the hands of the justice system isn’t cause for celebration, Team Some of the Crimes argued. It comes with real costs. And those among us who are smugly and self-righteously high-fiving about it might do well to pause and spend five seconds thinking about where this is headed.

As we merrily waltz off this cliff and into the abyss below, we should probably take a moment to look down.


The senior senator from Florida also had a strong reaction to his first encounter with inmate P01135809.

There’s much to say about this strain of thinking and about Marco Rubio generally, and I’ll say some of it below, but don’t tell me his prediction is wrong. It isn’t.

Do you want to live in a country where the leader of one party gets prosecuted in the thick of a presidential campaign by a federal agency that answers to the leader of the other party? I hope the answer is yes, because guess what—you already do.

And the next time Republicans control the White House, the favor will be returned whether criminal charges against the Democratic frontrunner are warranted or not. The president will order some ambitious staffer at the DOJ—perhaps someone whose name we already know—to file an indictment even if a conviction is unlikely, and that indictment will be filed. That’s how “tit for tat” works. If you’ve paid any attention over the last decade to the saga of the Senate filibuster with respect to judicial nominees, you know how this will go.

Retaliatory political prosecutions as far as the eye can see, sometimes meritorious but frequently not: That’s what we’re signing up for. Anyone who thinks public respect for American institutions is alarmingly weak now is invited to check back in 20 years after a series of out-party presidential nominees have had their campaigns sabotaged by weak criminal charges concocted to make them unelectable.

Trump’s prosecutions also guarantee that there’ll be no “good” outcome to the 2024 election.

Granted, there’s never a truly good outcome to an election in which he’s on the ballot. Either he wins or he cries fraud. But there was a possibility if no indictments were filed that he’d lose to Joe Biden in a landslide anyway, punished by swing voters who remain disgusted by his behavior following the 2020 election. When he cried fraud the next time, some Republican voters might not have believed him and considered that he really is damaged goods and a loser, as his critics often claim. 

That’s gone now. If Biden wins, his victory will be dismissed as unfair even absent conspiracy theories involving vote-rigging. “Trump lost because the DOJ put a thumb on the scale,” his fans will say. “He would have won but for the indictments.” Maybe that’ll lead them to nominate him a fourth time in 2028. At a minimum, it’ll spare them from having to consider that boorish populism, not Jack Smith, is why they keep losing elections.

Team Some of the Crimes also has a point when it notes that not all indictments are created equal.

You may have noticed that Trump’s staunchest defenders in Congress don’t say much anymore about the charges in the classified documents case. They were theatrically irate last summer after the FBI descended on Mar-a-Lago but grew quieter as details of what Trump had done began dribbling out. Nowadays they avoid the subject where possible. That’s what an open-and-shut prosecution will do.

If we’re going to take the momentous step of trying to send a former/future president to prison, knowing how divisive that will be, why not stick to playing our strongest hand? The more unassailable the case against Trump is, the more legitimate the process will seem even to his apologists. Instead we’re taking a kitchen-sink approach that reeks of scrounging for any charges that might stick, which feeds suspicions that this is about damaging him politically. And we’re doing it more than two years after the fact in the case of the coup-plot prosecutions, conveniently just as his presidential campaign has gained momentum.

As it is, if he ends up acquitted in the coup-plot cases but convicted in the classified-documents case, his fans will dismiss the latter as an Al Capone-style “make-up call.” The feds couldn’t pinch him on the worst crimes they accused him of so they got him on a much less serious charge, like tax evasion, just to make sure he went to prison for something. The context will make a guilty verdict in the documents matter seem less legitimate than it might have if it stood alone.

One more thing. Your motives in wanting to see Trump criminally charged might be civically righteous and pure, but you can’t be so naive as to think the prosecutors in these matters are as pure as you are.

Fani Willis and Alvin Bragg, the two local district attorneys prosecuting Trump, are Democrats. Bragg hinted strongly while campaigning for his office that he’d go after his party’s least favorite Republican if elected, which helped him to victory. The Justice Department, meanwhile, declined to pursue Trump aggressively for more than a year and a half after January 6 and only named Jack Smith special counsel after Trump had formally announced his 2024 candidacy.

Willis, Bragg, Smith, and Merrick Garland are now heroes of varying degrees to many Trump-hating liberals. Garland’s career is nearing its end but the other three have bright futures in politics if they want them.

So ask yourself, and be honest: Would any of these cases have been brought if Trump had chosen to live out his days playing golf at Mar-a-Lago instead of insisting on one last grudge match with American democracy?

If the answer is no—and it’s plausible that it’s no—then the justice system has allowed politics to guide its thinking about criminal prosecutions. That’s not supposed to happen in America. Here again, we may be closer already to a banana republic than we’d like to think.

Oh, and before I forget: Daffy though she is, Sarah Palin isn’t crazy to think that this grotesque mess will turn violent at some point. Toss murder and civil unrest onto the pile of things to worry about moving forward.

That’s the case from Team Some of the Crimes, that we don’t need to let Trump off the hook completely in order to be waaaaay more circumspect about how we’re approaching a matter as fraught as prosecuting a presidential frontrunner. 

I’m always game for circumspection. But.


I want deterrence. As much as we can muster.

Deterrence works. We’ve seen it already with the rank-and-file seditionists. There’s no reason to think it won’t work with the masterminds as well.

Since January 6 the authoritarians among us have had no reason not to try a coup if the opportunity ever presents itself, having seen Trump pay no price for his own crimes. Not politically, given his standing in primary polling. Not personally, as he’s anything but a social pariah. (You’re more likely to be ostracized by right-wingers for condemning a coup attempt than for staging one.) And not legally—until Jack Smith indicted him for how he behaved following the 2020 election.

I want them to worry about what might happen to them if they try it. The deeper Trump sinks into the quicksand of the criminal justice system, the more worried they should, and I think will, be.

Frantic anxiety about paying exorbitant legal bills, petty humiliations like having their mugshots plastered across the Internet, long stretches in prison—that’s what the Trumps of tomorrow and their more vulnerable enablers should look forward to when they lie awake at night. Smith’s federal indictment will add to the burden on their minds. Let the next-gen seditionists know with certainty that if they try to overthrow the government, eventually there will come a knock at the door.

I’m a conservative. I believe in incentives. Until recently, the incentives for and against trying to overthrow the government skewed lopsidedly in a dangerous direction. The criminal justice system has begun to correct that, belatedly.

I’m so invested in deterrence that I’d be willing to trade the forms we’re currently pursuing for forms that don’t involve prosecution. If the Senate had convicted and disqualified Trump at his second impeachment trial, as it should have, that in itself would have taught a powerful lesson to future autocrats about the steep cost of power grabs. You may or may not lose your liberty if you try it but you’ll certainly lose your career in politics and whatever stature you had as a public figure.

And so we return to Marco Rubio and the cowards in the Senate GOP caucus. As I see it, they all but forced the criminal justice system to try to hold Trump accountable when they refused to do so themselves.

Now here they are, whining about it.

If you believe, as I do, that there must be accountability for Trump somehow for the sake of deterrence, how do you propose we manage that when his party won’t concede that any forum is legitimate? As we discussed last week, they won’t convict him in the Senate, they won’t respect guilty verdicts as just, and they won’t accept defeats at the polls as fairly decided.

Prosecutors looked at that, it seems, and concluded that if the political system can’t hold Trump accountable because of Republican cultism, the justice system had to step in—especially when he’s running for president semi-explicitly on gaining power in order to evade all forms of accountability, legal and otherwise. They let politics influence their decisions to charge him, I think, and law enforcement making decisions based on politics is corrupt. Yet an authoritarian earning legal impunity from the perks of his office and the slavishness of his lackeys in the legislature is also corrupt.

Both are slippery slopes. But I’d rather have a flawed system of accountability than none at all.

The most galling thing about Rubio’s tweet, though, is the suggestion that Democrats rather than his own dereliction of duty are to blame for forcing us to choose between those two slippery slopes.

It will soon be grassroots Republican lore that “Democrats started this” by charging Trump, justifying all manner of retaliatory prosecutions and abuses of power once the GOP is back in charge of the Justice Department. Rubio is transparently preparing the ground for it in his tweet, which would be terrible even if he and his colleagues hadn’t forced this impossible dilemma on the country. It becomes atrocious when you remember that they did. “If you don’t let our guy get away with real crimes, we’ll make up imaginary crimes to charge your guys with” is how Julian Sanchez paraphrases him, describing the senator’s position as “a gangster threat tarted up as tongue-clucking civic concern.”

That’s correct. And speaking of gangster threats.

I’m not concerned about Sarah Palin and civil war because I find the idea absurd that this flimsy indictment will enrage his fans while that very solid indictment might be grudgingly tolerated. As Semafor reporter Benjy Sarlin said, it takes a Very Online mindset to believe that Trump voters are discerning meaningfully among the various charges against him. To practically all of them, I suspect, these are just separate pieces of the same grand “deep state” hoax designed to ruin his chances of being reelected, which, coincidentally, is exactly the lesson their hero is encouraging them to draw.

Once we agree that he should face accountability in some form, legal or otherwise, we’re accepting a risk of violent reprisal. Had Rubio and the Senate GOP done the right thing two years ago and disqualified Trump, there’s every reason to think they would have been targeted by the cult themselves. (Which may explain why they didn’t do the right thing.) Unless you’re on Team None of the Charges—or Team No Accountability Whatsoever, really—you need to make peace with the implications of proceeding to trial on any of the indictments and not let yourself be intimidated by these fascist cretins. 

There’s more than a whiff of terrorist appeasement in the idea that we might go easy on a defendant because he has political influence and a mob behind him, frankly. That would be the ultimate “politicized justice,” no? Fiat justitia ruat caelum.


Our family quarrel ended on this note: What would it take for those of us on Team Most of the Crimes to admit we were wrong? What would need to happen over the next 18 months for me to say, “Ah, geez, maybe we shouldn’t have charged him with quite so many felonies”?

Domestic terrorism wouldn’t change my mind. If I allowed it to, that really would be rank appeasement. In fact, because I view prosecuting Trump as an “in for a penny, in for a pound” thing politically, I don’t see much marginal cost in each additional criminal offense. If we’re not letting him go completely scot free then we’ll bear the same social costs from charging him with most of the crimes as we’d bear from charging him with only some of the crimes.

But.

If he ends up being reelected, I’ll admit I was wrong in believing that this process might have been anything other than completely pointless. Trump winning would mean that prosecuting him didn’t spoil his chances of victory, and obviously he’d use his new power as president to go about short-circuiting the federal and state charges pending against him. Accountability would have been a total failure in the end.

Of course, if we reelect him—a man who palpably isn’t sorry for anything he did—then the civic rot will have turned out to be so profound that none of this matters very much. A country willing to give Trump another chance is a country that’s already lost. The only remaining suspense will have to do what form its disintegration will ultimately take.

Nick Catoggio's Headshot

Nick Catoggio

Nick Catoggio is a staff writer at The Dispatch and is based in Texas. Prior to joining the company in 2022, he spent 16 years gradually alienating a populist readership at Hot Air. When Nick isn’t busy writing a daily newsletter on politics, he’s … probably planning the next day’s newsletter.