Assuming the classified documents Donald Trump had in his possession at Mar-a-Lago were a matter of horrible judgement — and no evidence turns up that he was doing anything nefarious with those documents (besides possessing them) — then the best path forward for the Biden administration and the Department of Justice would be to forgo any criminal prosecution of the former President of the United States and for the Attorney General to publicly state that the documents are now safe.
Merrick Garland has prosecutorial discretion and he should use to it avoid a national crisis; a criminal trial of the former President (without clear evidence of a serious crime like selling that information to a foreign adversary) would be a calamity.
Rather, Garland should state the obvious: Donald Trump created a serious national security risk by keeping these documents at Mar-a-Lago; and in the future, the former President should be barred from handling classified information. This will embarrass Trump and most Republicans will likely agree – even publicly – with the Attorney General’s sober assessment.
For those demanding a criminal prosecution of Donald Trump with cries that “no one is above the law,” they are not considering how this could all play out.
First, those hoping that the former President will accept a deal to avoid possible a prison sentence, are taking the risk that Trump refuses the deal and demands a trial. Can you imagine just how insane that trial will be? We will have the former President of the United States on television telling the American people that the FBI set him up. Keep in mind, all he needs is one supporter on the jury and he could walk with a hung jury. Then what?
Second, think about what a trial of a former President means on the national stage. The clear beneficiaries are Vladimir Putin and Xi Jinping – our geopolitical adversaries hellbent on demonstrating to the world that the U.S. is no better than their own criminal regimes in Moscow and Beijing, respectively.
Third, the one thing that Donald Trump relishes is a nasty public and political fight – so why should the Biden administration and the Department of Justice hand him one? Yes, Trump could self-destruct in a trial – but he has a habit of taking everyone else down with him.
Fourth, the Department of Justice has a less than stupendous track record on prosecuting political corruption. Recent convictions have been overturned, like that of former Alaska Senator Ted Stevens.
Fifth, a trial will suck the nation into an abyss of Donald Trump 24/7. It will have ramifications across government, chilling the likelihood of the Biden administration or Congress addressing our serious challenges, like inflation, the Russian invasion of Ukraine, Chinese aggression and gun violence.
Finally, there are people who have enabled Donald Trump with some egregious and potentially illegal behavior over the last few years. If these individuals violated the law, they should be aggressively prosecuted. It will send a clear message that the justice system will not tolerate law breaking even by high level government officials.
Of course, President Trump deserves to be criminally prosecuted if he had classified documents at Mar-a-Lago. But, like Clint Eastwood says at the end of the movie Unforgiven “deserves got nothing to do with it.” We’re talking about the welfare of the nation, and putting Trump on trial could risk tearing it apart.