Whether to prosecute Trump for his various crimes, including the incitement to riot against the Congress, is a difficult question. I infer that the Founding Fathers would have thought not to do so. There is no provision in the Constitution for a judicial procedure for a crime committed by the President. Rather, there is the political decision to relieve a President of office through impeachment and conviction. The United States does not want to follow a path of getting rid of a President by jailing or executing him, something the Founding Fathers might have anticipated would happen more than a century later when politicians out of favor in the Soviet Union were put into kangaroo courts and were executed for their so called crimes. Conservatives also think that a President has a wide leeway as to how to act while in office and so should not be tried for what he deems it necessary to do in the interests of the nation. Lincoln had suspended habeas corpus. Should he have been prosecuted for that if he had lived even if it had been a useful expedient? But, as a matter of fact, few Presidents go even close to engaging in crimes. Nixon did, but how many others? FDR didn’t and the closest Truman did during his very active Presidency was the Youngstown Steel case, where he nationalized factories so as to prosecute the Korean War, and that was a political matter, purely above board rather than conspiratorial, and was overturned by the supreme Court as having gone beyond the scope of Presidential powers. What happens rather than a trial is a scandal, such as Reagan’s involvement with Iran Contra. He was never prosecuted for violating the Boland Amendment not to send money to the Contras.
There is another point of view. Laurence Tribe, the dean of constitutional scholars, says that Presidents have to be subject to law because otherwise they could get away with anything they please, the conventions and the checks and balances in the Constitution not enough to preclude mischief, quite aside from the symbolic idea that even Presidents can be held to account, the United States a nation of laws not men. A President unshackled by law could require federal agencies to violate any number of laws and even abet a foreign dictator, the extent to which Trump was in cahoots with Putin still unclear. Fox News is still castigating Hunter Biden for unspecified crimes but look at the coal in your own eye rather than the mote in the eye of another. Trump is the malfeasance figure and Trumpists don’t want to face up to tha, denying he ever did something worse than curse a little.
So whether or not to prosecute Trump? A historical precedent that is revealing is the execution of Charles I and not because he was killed. THat is a bad precedent because other kings afterwards got the same demise, Louis XVIII , apparently for treason by absconding to the Germans, or the Romanovs, just for being there and the Bolsheviks just wanting to end the monarchy. Rather, the death of Charles I was not for what he did but because he might do. He had, even under arrest, continued to plot against the Parliamentary Party. There was no stopping him, getting him to calm down and make his peace with the legislature and so he had to be killed to keep him from continuing to overthrow the regime. The same is true with Trump. He has not given up his cause, that the biden election was rigged or that the insurrection was legitimate and he backs candidates who uphold his views. Bringing him to court would allow a fair hearing of what he did rather than what his claims were. He would be guilty of sedition even if he was entitled to rant about his beliefs.
The issue in the testimony of Cassidy Hutchinson about what happened in the White House on Jan. 3rd and 6th is not that it is a shock and a revelation, something contrary to accepted fact, and thereby tested against truth, her past examined for bias or lies nor, on the other hand, believed because of her calm and straightforward demeanor. That was the way Judge Kavanaugh was judged. By comparing that of his life to the life of the accuser and therefore resulting in no contest in that both people were plausible and one of them just a bit more so, which is hardly conclusive as important a matter as who should have a lifetime appointment to the supreme Court. Rather, what Hutchinson was just filling out the details of what something like this must have happened behind the scenes to move along the action where the pivotal events were perfectly visible and well known. Without Hutchison, we knew Trump had gone to the ellipse, had fomented his supporters to be strong when they went up to the capital so as to disrupt the orderly election of the next president and been reluctant to call his minions off even when they had engaged in violence and threatened to hang the Vice President,. Saying instead that he loved those people. What more is to be said? Hutchinson simply adds details: that Mark Meadows was despondent and unassertive, that Guiliani was ecstatic that the unrest would unfold, and the President enraged that he could not get the insurrection to proceed. It is very hard to believe that there are not a good many other people who could fill out that basic story if they came forward, but people are not real revolutionaries who pledge their sacred honor to their plans but are opportunists who become cowardly rushing to apply for pardons and deny hey were part of he insurrection three times before the cock crows.
Whether to prosecute Trump goes beyond the questions of legality and Constitutional legitimacy. It has to do with underlying assumptions about human nature: in what way can society educate itself so as to change its minds and hearts? Many might presume that legal trials bring facts to the fore and that the populace, like jurors, will change their minds because of having confronted the facts, but I don’t think so. People who thought Johnny Depp abused Amber Heard are not convinced by the verdict and I don’t think the Scopes Trial got rid of anti-Darwinism. The mental processes are more subtle than that and so the large reservoir of pr-Trumpists will not be swayed against him, though they might get tired of him and turn to some other person as standard bearer for that point of view, which is to reclaim America as it was before 1950, whatever that might actually mean. We will see, for example, whether Southerners really want to put women in jail for getting or trying to get abortions.
There is a deeply held explanation of how people change their minds about public issues and also personal issues that was codified by Max Weber, which is that the source of such change is charismatic leadership, where the personal qualities of the leader become the inspiration of followers to change their tune, to think that was previously a moral precept can be reversed and people now go off to a new way because of that new understanding. After all, everything else is just customs and regulations that enforce the charismatic vision. Certainly, Weber was thinking of Jesus as being just this sort of figure who revolutionizes thinking, turns ideas topsy-turvy, making people aware that their inner states are more important than the obedience of law. The idea that charisma overtakes values was in operation when it became clar that Trump had lied about the seriousness of Covid-19 when that was revealed in Bob Woodwad’s book. Rather than find lying to be a fault, something presidents should not do to the American people, George Bush supporters insisting he was mistaken rather than having lied about weapons of mass destruction, Trump supporters said that lying by the President was alright because it was shielding the populace from panicking, lies now legitimate because told by the right person.
So it is difficult to understand how people might part with Trump. It might result from uncovering Trump as someone, for example, who had lost control of himself by insisting that he go up to the Capital. That is not being statesman-like. But he had never been statesman-like and so why would his supporters be affected by that revelation? Even the Justice Department indicting Trump might just make him a martyr and there are other issues, like abortion or guns, which Trump supporters care about more and so might stay with the issues eleven if dispensing with his symbolic presence.
I want to make a more radical critique of the Weber proposition about how charisma works as an irrational and purely personal quality, and I think it applies even to Jesus, who was very cagey about opposing the law when He was, so He said, fulfilling it. Rather, what people do is modify in one way or another the story that is inherited so as to make it more palatable rather than to shift from one basic belief to another. The key example is not Jesus but Abrahan and Isaac which for so long has been understood through Kierkegaard as an either/or situation: whether to kill his own son because God has commanded to you to do that or find a goat to sacrifice instead. That event can be understood historically as a transition from human sacrifice to animal sacrifice, but that is not to deal with it sufficiently as a literary matter. What the Genesis story shows is that God could have sacrificed Isaac and Abraham would have allowed that but that God decided not to do that even if He could have. There is this double perception, the second one, that he didn’t, just a modification of the initial perception that God could have indeed had Abraham kill Isaac Modifications move on, change the texture of things gradually, when people are up to inventing new modifications that better suit them for deep reasons, as was the case in Abraham’s times, or superficial reasons, as when Trump gets angry over not going up to the Capitol. The point is that people are going to go through a long evolution in modifying the character of Trump to get rid of his revolutionary impetus. The real truth, the fact that history cannot be easily reversed in a trial or an inquiry, is that Trump should never have been elected and I hope that wiser heads among republicans will be very wary of what had been unleashed and they should be very careful about who gets the nomination because such a figure may become a figurehead for a well selected cabinet, as happened with Reagan, but may have some fangs of his own.