I, like many in America, have been following what might happen in various prosecutorial scenarios, to our former president.
Yesterday’s criminal referral from the January 6th congressional committee was an important moment for determining how it all might turn out. Their case appears strong and well-documented. It’s hard to argue with their conclusions and recommendations (not that people won’t try, but I think that would be a historical mistake).
In general, I am of the opinion that criminally-prosecuting people - anyone - should be undertaken as a last resort, not a first one. There are myriad ways to address bad behavior, mistakes, and poor judgement before we go through the public expense and life-suppressing consequences of a trial and possible prison time. This is especially true for minor or first offenses.
Of course, whether we embark on criminal proceedings depends on how we view ‘justice’ and for whom.
The criminal system is intended to achieve several outcomes:
to keep the public safe from dangerous people
to punish
to reform
to dissuade others from following similar actions
In the case of our former president, it is difficult to see that ‘reform’ is likely - his actions have had many negative consequences, including loss of life (e.g. capitol police officers) that should have led to contrition, apology, and behavior change, but haven’t. I’m not sure that a conviction will do anything in this regard.
Since his main weapon is hate and fear spewed through tweets and statements, I don’t think prison or a conviction would keep his particular form of danger from the streets either. Hate-mongers are still allowed to host podcasts from prison for goodness sake.
So that leaves the main reasons for prosecuting The Former Guy as either punishment and/or as a deterrent to others.
I think the main argument for punishment is actually one of congressional and judicial integrity rather than individual consequences. If there is no punishment sought, then it makes a bit of a mockery of American justice, which explicitly attempts to mete out punishment fairly. Equality under the law is a basis of the justice system. And though we know that this equality principle is imperfectly applied at the best of times, declining to prosecute in this case would be a particularly egregious example of letting privilege determine legal guilt or innocence.
Punishment in this case then, is about fairness (i.e. would we let other people get away with similar actions), and about efficacy and trust in the institutions of justice. As Jamie Raskin said in the public hearing yesterday: “Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a free pass”.
If this is true, I do think the Department of Justice has no choice but to pursue prosecution. I also believe that if the new session of the House of Representatives pushes against this action, (or as McCarthy has promised - if they choose to ‘investigate’ the J6 committee), then trust in the institution of Congress will also be further eroded. Of course, several members of Congress will be concerned about their own culpability, which is why the final category is so important:
The issue of deterrent.
I believe this is the most important reason to pursue prosecution, and why legal action cannot stop at the former president, but why it must also include other colluders who were or still are in positions of power.
Those running for or holding office must understand that their actions are not above the law, and that their role is not the accumulation of power, but of service. Ultimately, they are accountable to the people and we can vote them out, but when representatives seek to remove the power of the people by illegally ignoring their votes and instead just proposing to insert whoever they want into the winner’s seat, then our only recourse is prosecution. And ‘we the people’ should embrace it in these circumstances.
The goal of this prosecution would not only be punishment for the offenders, but to remove those representatives, disallow them from ever representing American citizens or holding public office again, and to demonstrate that actively undermining constitutional law is not permissible by anyone, but especially by those who have explicitly taken an oath to uphold it. There are current and future office-holders who need to be shown that public office, even in the most divisive political climate, is still not a game to be played, it is a service to be rendered.
I know we’re all tired of this circus. I am, certainly. And yet I think we have a job still to do.
The arc of the universe does not bend towards justice by itself. We have to support it when there is opportunity. Justice in this case is setting a precedent for stability and solid governance. Up until this episode, I assume that most Americans saw this stable democracy as our birthright. I’d like to think that the generations who come after us will do so again, but with increased vigilance. A successful prosecution in this situation, makes this more likely in my mind.
And this is who justice is for in this case: the next generation of voters. Let’s not remove their faith in our systems, institutions, politicians, and potential, by allowing blatant undermining of our most dearly-held principles to go unchecked.
This is a generational opportunity to stand strong with fairness, democratic principles, true leadership, accountability for the powerful, and the future of America.
Let’s see this through.
"public office...not a game to be played, it is a service to be rendered." Yes! Thank you.
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