I recently struggled to understand this Jack Goldsmith piece about prosecuting Trump for January 6. The piece is exasperating in its fatuous logic and weak-kneed “analysis”. I asked a former law partner — a former prosecutor and experienced litigator — to check my math.
My view
Goldsmith sets the scene by referring to “the Biden administration’s election fraud prosecution” (my emphasis). Music to Trumper ears, but hardly accurate as to how DOJ works. Nor does Goldsmith offer evidence of communications between Garland and the White House on the investigation or the decision to prosecute Trump. We know from Garland’s obsession with his own virtue that there is no such evidence.
Goldsmith says the prosecution “reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions”. What’s the tragedy? Assume we agree that “tragedy” means an event causing great suffering, destruction, and distress, such as a serious accident, crime, or natural catastrophe. Goldsmith’s reference to Trump’s “many transgressions” (he can’t bring himself to call them even alleged “crimes”) which, according to him, did cause “harms to the nation,” suggests the tragedy has already occurred. But, contrary to what Goldsmith insinuates, whatever tragedy has occurred was perpetrated not by DOJ, but by Trump and his cronies.
What, then, makes DOJ’s choice to prosecute those transgressions “tragic”? Prosecutors have discretion to charge or not, a discretion they exercise constantly; it’s their job. And, certainly, when they elect to prosecute they’re duty-bound to do so on the basis of evidence that a crime’s been committed, rather than conjecture or a political agenda. In Trump’s case, they investigated, collected evidence — none of which a ranting, foam-at-the-mouth Trump has denied, it’s worth mentioning — and got a grand jury to indict. That the criminal happens to be an ex-president and now a candidate to get the job back makes the decision to indict him neither a political prosecution nor a tragedy.
(To be sure, one can say that a prosecution of Trump is unfortunate. But that’s only in the sense that, for a republic that has had peaceful transfers of power since George Washington, it’s a shock to the system when someone like Trump appears on the scene to try and bury a vital democratic norm. It’s likely that most Americans say, We wish we didn’t need to go there. But that we do is entirely a function of Trump’s conduct, not DOJ’s decision to hold him accountable for it.)
Goldsmith claims “(a) there will be downsides to the prosecution, (b) the downsides might outweigh the upsides, (c) the prosecution “will be seen as a mistake if, as is quite possible, American democracy and the rule of law are, on balance, degraded as a result,” and (d) ‘the nation must absorb’ the downsides of the prosecution to figure out whether it makes things better on balance.” Incomprehensible.
And bizarre stuff from a former prosecutor. Every prosecution has potential downsides, the chief one being that a jury might acquit. But that’s a risk that prosecutors face in all cases. To mitigate that risk, they build a robust case and then exercise their judgment as to whether to proceed. With Trump, what we don’t hear from Goldsmith (or any other commenter, for that matter) is an assertion that the indictment skimps on facts.
How, exactly, would the prosecution “be seen as a mistake if, as is quite possible, American democracy and the rule of law are, on balance, degraded as a result”? As seen by whom? That Trump and his millions of fans see it as such is true. But so what? Every criminal defendant swears he’s being railroaded, regardless of the evidence. Nor is it news that Trumpers have only a tenuous relationship with facts, especially inconvenient ones. Is a large fan base really enough to justify not prosecuting, even though evidence is to hand? Conversely — assuming that vox populi is relevant at all to the administration of justice — is it right to ignore the millions who do want to see Trump face the music for what Goldsmith himself calls the “many transgressions” that caused “harms to the nation”?
Goldsmith’s use of the emotive “degraded” is fascinating. What does he mean? How is it even possible for a prosecution — assuming it follows the rules, including as to Trump’s due process rights — to degrade democracy and the rule of law? Isn’t the opposite true? Isn’t prosecution an affirmation of the principle that everyone is subject to the law?
Contrary to what Goldsmith argues, prosecution of the guy who tried to subvert democracy in fact invigorates it by giving it a shot at continuing to function. It’s the decision not to prosecute, i.e., to reward the “many transgressions,” which would degrade it. Let’s also not forget, either, that, despite the indictment, Trump continues to get democracy’s benefits by being able to express his views and even to campaign for the presidency.
Goldsmith’s “main point is that we cannot now know [whether not prosecuting Trump would be worse], and the answer is not obvious, at least to me, especially in light of our broken politics, the novelties and uncertainties in the legal case against Trump, the weight of past Justice Department mistakes and excesses in investigating Trump…. If Trump is convicted, and the trial is and seems fair, and the Supreme Court upholds its validity, Smith may well be a triumphant savior of American democracy, especially if Trump self-destructs in ways that diminish him politically. But what if only a few of these things happen, or none of them?”
The inferences to be drawn here are startling, first and foremost the idea that because Trump’s a politician he can never be prosecuted. (Curiously, Goldsmith fails to explain why it’s legitimate to prosecute 1000+ defendants for January 6, but not its instigator.) It’s this affirmation, intended or not, of the two-tier justice system which undermines democracy. Indeed, Americans are aware that there’s one quality of justice for the rich and a lesser one for the rest. But they’d be surprised to learn that, if you’re elected to the presidency, you get a pass on criming. When the crimes charged go to the heart of the system of government, to a shredding of the Constitution that the defendant had a sworn duty “to defend, preserve, and protect,” prosecution by all lawful means is an imperative, not a choice.
As for the “novelties and uncertainties,” it’s true that the country has not faced this scenario before. So what? Jack Smith didn’t invent the federal criminal statutes under which he’s prosecuting Trump; they’ve long been on the books. That DOJ has never needed them for a president before Trump simply reflects the fact that none of his predecessors have been as execrable in their conduct as he has.
Goldsmith denies that he’s making “an argument for blanket immunity for former presidents, or even an argument for not prosecuting Trump here. But at the same time, I do not think that prosecuting a former president for very bad acts committed in office is constitutive of constitutional democracy or the rule of law, especially when the bad acts are not obviously covered by extant law.” What? Which is it, immunity or prosecution?
Prosecution for “very bad acts” (Goldsmith remains allergic to “crime”) is not “constitutive of constitutional democracy or the rule of law”? This is incoherent. The only debate during his presidency was whether Trump could be prosecuted while in office, or whether impeachment was the only remedy. Standard practice, based on nothing more than DOJ policy, has been that the US does not indict sitting presidents. But the power to prosecute an ex-president after he leaves office has not been credibly questioned.
When Goldsmith says, “the bad acts are not obviously covered by extant law” (emphasis added), what does he mean? The indictment cites the statutes that Trump is said to have violated. Do any of them say, Thou shalt not create fake electors to prevent the winner’s taking office? Or thou shalt not stir your supporters to violence in order to prevent the counting of the electoral votes? No, but prosecutors routinely adapt statutes to conduct. In many instances, they use multiple statutes for the same acts. If the facts fit, what’s the problem? (Worth pointing out is that Goldsmith does not challenge the substance of the indictment, neither the facts nor the law.)
Equally, what to make of the puzzling contention that “prosecution for crimes cannot be the sine qua nonof our system of government, since government lawyers every day decline to prosecute acknowledged criminals due to the broader costs to the community of doing so.” Right enough. But the country hasn’t had a Trump before and, one can hope, won’t have one in the future if his prosecution does what it should, which is to deter others. It’s true that not every set of facts automatically warrants prosecution. But no one suggests that it should. Jack Smith had the discretion not to indict Trump; he chose to forge ahead based on the strength of the evidence that he has. If it’s Smith’s judgment that Goldsmith is questioning, he should say so.
Ultimately, doesn’t Goldsmith’s argument betray a lack of faith in the legal system’s ability to prosecute Trump in accordance with the rules? Why he lacks that faith is unclear, though maybe he suspects (rightly) that the Supreme Court will ultimately rule in Trump’s favor on contrived grounds because that it is the political result it wants. There also is no doubt that Republicans will look to prosecute a future Democratic ex-president, which won’t be a problem provided evidence of a crime existed. If Republicans invented a case, it would be for the judiciary to adjudicate it accordingly. If it failed to do so, the danger to the republic would far exceed DOJ’s decision to prosecute Trump.
The response
I read Goldsmith’s original opinion piece in the NYT and my reaction was, to put it in terms of the book that you gave me several years ago, Goldsmith is either a founding member of the “chicken shit club” or a closet Trump supporter. Of course, those are not mutually exclusive conditions.
He knows enough to recognize that there are many legal, procedural, and otherwise serendipitous off-ramps for Trump in any prosecution. His argument seems to be that, because we don’t have a crystal ball, risking possible adverse consequences weighs against taking any chance at all because the downside may exceed the upside. That analysis, obviously, calls for a comparison of the practicalities of the two “sides”.
Goldsmith is correct that there are many ways that Trump could skate on any or all of his prosecutions including, Trump’s apparent great [white] hope that, in the end, SCOTUS will somehow save him probably by once again by overturning well-settled law and crafting a new law just for Trump.
Let’s take that as a starting point from which I am certain that Smith and all the other prosecutors have all started when deciding to prosecute Trump. You and I (and David French, with whom I frequently disagree), are all in agreement that the rule of law, the Constitution, and our democracy depend on the prosecution of everyone who can be prosecuted regardless of their status, so that is the upside which is, as a practical matter, shared by Democrats and many independents; roughly 55%-60% of the country.
The flaw in Goldsmith’s reasoning is in measuring the potential practicalities of the downside, because as you point out, what is that downside? Is it that the roughly 35%-40% of the Country comprising Republicans may view all of the prosecutions of Trump as just more in a long line of persecutions? According to polling, however, even 25% to 30% of Republicans think Trump should be prosecuted forsomething, so that reduces the percentage of the population who still thinks that Trump walks on water to roughly 26%-30% of the country and adds another approximately 10% to the portion of the country who would view a prosecution of Trump as entirely fitting and proper. So are we to forgo a Trump prosecution and offend the faith in the system of 65%-70% of the country so that we do not offend the remaining 30% or less. Goldsmith’s suggestion that we should is stupid on its face, particularly when we consider the nature of that barely 30% of the population.
As has been well established, most of that 30% are white, Protestant, high school-educated males plus some high school-educated females, most of whom are conspiracy junkies who fervently believe that Trump will save them from whatever existential disaster they have in mind.
As Adam Kissinger pointed out on CNN, all these people have too much in “sunk costs” in Trump to ever back down and admit that they were wrong about him, too. That is because they (rightly) question their own intellectual capabilities to determine truth from fiction, as borne out by their getting suckered into supporting both Vietnam, and the Iraqi invasion, and by believing that their Republican representatives in Washington would ever act in their interest when all those representatives were bought and paid for long ago by the Koch financial network and most of the rest of the billionaires in the country.
Hence that 30% can never admit that they were fooled again by Trump who is the only one in whom they now believe. As a result, if Trump is convicted, that 30% will see the conviction(s) only as proof that the system is rigged against them and Trump, just as Trump has been telling them all along. If Trump prevails, that will serve to convince the 30% that they and Trump were right all along, and that Trump is their true white Savior.
In sum, contrary to Goldsmith’s fears, I think that 30% of the population has to be written off permanently and the country should proceed to do whatever is necessary regardless of any adverse impact from that 30%. In fact, even there, there is a potential upside. If Trump is convicted and goes to prison, thereby convincing that 30% that the system is rigged, most of them will probably fall by the wayside which would further reduce the Republican ranks and that party’s influence as a counterbalance to legitimate governance. Trump is a personality cult. I just don’t see significant numbers of the 30% lining up behind DeSantis, Josh Hawley, or anybody else in the Republican clown car. Once Trump is gone, so will be most of that 30% as active voters.
You are also right that prosecutors take a risk every time they bring a criminal case to trial. Returning again to The Chicken Shit Club, the DOJ has always been particularly averse to bringing any case where it sees any reasonable possibility of losing. And here, we have Jack Smith spent time as a judge on the ICC in The Hague, who strikes me as a perpetually over-prepared and no-nonsense kind of guy. Therefore, fairly certain that he would not have brought the indictment against Trump unless there was both a huge amount of evidence and legal reasoning behind it. Same thing with Fani Willis down in Georgia.
Consequently, win or lose, I see little, if any, downside to prosecuting Trump and a huge upside by doing it. I agree with you that Goldsmith’s reasoning is lightweight.
My reply
In reviewing this erudite response, it suddenly dawned: I was barking up the wrong tree. Goldsmith’s is a political piece, not a legal one. He’s auditioning for a job. His choice of language is a dog whistle for Republicans as squeamish (and spineless) about Trump as he is. It’s Trump’s gaucheness these people object to, not his policies. Goldsmith’s message to them is that he is a reliable, non-Trumper Republican ready to serve in a high-level post in a future Republican administration. It’s merely a more sophisticated version of Bill Barr’s job application to Trump, styled as a legal “Memorandum”.
The gist of Goldsmith’s message is assurance to the GOPper faithful that he, too, is not keen on prosecuting Trump. At the same time, given the extent and egregiousness of the facts (“very bad acts”) in the election case, it remains important to give notice to the remaining non-cultists who always (unjustifiably) prided themselves as the party of law and order that Goldsmith is still on board with its tough-on-crime mantra.
Goldsmith chooses waffles for his balancing act: he denies wanting “blanket immunity for former presidents,” but does seem to favor it in Trump’s case. He denies arguing for not prosecuting Trump” though his hand-wringing over unspecified “downsides” suggests the opposite, as does his mind-bending contention that “prosecuting a former president for very bad acts committed in office” is inconsistent with democracy or the rule of law. He admits that Trump caused harm to the country, but believes that prosecuting him for it risks degrading democracy. These are a politician’s smoke signals, not an intellectually honest assessment the decision to prosecute Trump.
