The perils to democracy of indicting — and not indicting — Donald Trump

America is on the precipice of an unprecedented legal, constitutional and political crisis with the federal indictment of former President Trump, who has been charged with 37 felony counts, including 31 violations of the Espionage Act, obstruction of justice and making false statements to authorities.  

The potential for civil and political unrest is high, and there is a real risk that this indictment sets a dangerous precedent in the U.S. legal system whereby the Department of Justice (DOJ) becomes a perpetual political weapon used by nefarious actors in a sitting administration to prosecute opponents.

That being said, given the severity of the alleged crimes, the thoroughness of the prosecution’s case and the volume of damning evidence, the greater threat to American democracy would have been if the DOJ had not prosecuted Trump.

It is not an understatement to suggest that the federal grand jury’s indictment is devastating for Trump. The charges and evidence indicate that Trump retained and insecurely stored highly sensitive military information that he was no longer authorized to possess, shared national secrets with personal associates at his golf club, hid classified documents from authorities, and obstructed a federal investigation.

Trump’s primary defense — that prior to leaving the White House, he declassified any papers he took — has also been undercut by a witness-provided tape in which Trump insists, “as president, I could have declassified them, now I can’t.” The tape also rebuts claims made by Trump allies that he was not aware that he had retained such highly sensitive government secrets — as the former president was reportedly recorded referencing Pentagon documents he had kept regarding an attack on Iran.

Even Trump’s allies in the legal world have acknowledged the scrupulousness of the prosecution’s case. His former Attorney General Bill Barr called the evidence “very damning,” and said the Justice Department had “acted in a very patient way,” in the face of “egregious obstruction.” In describing the aforementioned tape, famed lawyer Alan Dershowitz, who defended Trump during his 2020 impeachment trial, wrote that it is “the kind of evidence every defense lawyer dreads and every prosecutor dreams about.”

While no one expected Trump’s fiercest defenders in Congress to waver, it has been disappointing to see mainstream Republicans, especially House Speaker Kevin McCarthy (Calif.), rush to Trump’s defense and amplify his false narrative about the political weaponization of the Biden DOJ. Following Trump’s arraignment, McCarthy sent a fundraising email criticizing the “witch hunt” and imploring donors to “stand with Trump.”

There is no reason whatsoever to believe that special counsel Jack Smith and the DOJ were motivated by anything other than a duty to uphold the letter of the law, and any public officials who suggest otherwise — especially in the face of such damning evidence — are doing the country a disservice.

It should also be noted that this is not a position any attorney general would relish — certainly not Merrick Garland, who is described as a “hyper-prudential institutionalist who would like nothing more than to restore, quietly and deliberately, the Justice Department’s reputation for probity, process, and apolitical dispassion” in an in-depth profile published in the The Atlantic last year. Smith and his DOJ staff likely felt that they had no choice but to bring charges given the preponderance of evidence suggesting that Trump endangered national security and attempted to subvert the rule of law.

Trump and his enablers bear the sole blame for this tragedy — which they have gleefully used to rile up the MAGA base, all while America braces for a constitutional crisis and potential political violence.

The latter point is not an exaggeration. Experts on political violence are raising concerns over the wave of calls by Trump’s defenders to treat this indictment as an act of war. After the indictment, Kimberly Guilfoyle, the fiancé of Trump’s eldest son, posted a photo of the former president with the words, “Retribution Is Coming.” Just before the indictment was released, Rep. Andy Biggs (R-Ariz.) tweeted, “We have now reached the war phase. Eye for an eye.”

In all likelihood, House Republicans will imminently launch politically motivated investigations into President Biden and his family in retaliation, leading to more gridlock and division in Washington and less progress for the country. Further, Trump has already promised to weaponize the DOJ against Biden and his family members if he wins the presidential election.

Despite these very real consequences for the country that will follow from Trump’s indictment, the damage to American democracy would have been much greater if the DOJ had chosen not to bring charges in the face of this evidence. A failure to do so would have jeopardized our institutions irreparably and sent a message to our allies and adversaries alike that the U.S. treats our leaders as if they are immune from the law, much like an autocracy.

No one should be above the law — and certainly not someone like Trump, whose feckless yet deliberate disregard for the rule of law has endangered our national security and undermined the foundations of American democracy.

Douglas E. Schoen is a political consultant who served as an adviser to former President Clinton and to the 2020 presidential campaign of Michael Bloomberg. His new book is “The End of Democracy? Russia and China on the Rise and America in Retreat.”