I’m as interested as any American in the various investigations of Donald Trump. It’s somewhat tough to get a handle on them, because several prosecutors are looking at his conduct and various incidents. There is the Capitol riot on Jan. 6, 2021; the alleged conspiracy to submit a false slate of electors; the reported attempt to convince the Georgia Secretary of State to submit false returns; the possible election code violation involving Stormy Daniels; a number of alleged false statements about potential fraud in financial valuations submitted by his company; and of course, the brouhaha about classified documents.
Many commentators, including Democrats, have expressed the opinion that if there’s a violation of law, it doesn’t matter if it’s the president of the United States who might be charged because our justice system is meant to respond equally to all individuals, no matter how powerful they might be. I agree with that in principle, but there are times when a prosecutor must take into consideration the public’s response to potential charges. I believe strongly that Trump should be charged if he committed crimes in relation to his role at the Capitol on Jan. 6, or other serious crimes that evidence may show, but I don’t think he should be charged with anything concerning the removal of classified documents to his Mar-a-Lago residence or his reported attempt to hide them from the FBI.
In my 14 years in the District Attorney’s Office in Philadelphia, six as an assistant district attorney and eight as the elected DA, I often weighed the effect on the public or potential jurors of my decisions to bring someone to trial. I knew, for example, that when we charged the officers who beat up Delbert Africa in the first MOVE assault, we had little chance to convict them — but I thought we had to try to prosecute the case to put a marker in the ground that police cannot take the law in their own hands and act as a judge, jury and executioner. I also knew when I served in the special prosecutor’s office that even though the police technically violated the law by taking free hamburgers from fast food restaurants, the public would consider it overkill to charge them — tremendously unfair and a waste of time and taxpayers’ resources.
So, how does my experience apply to Trump and whether he should be charged with withholding classified documents and obstructing justice? Simple: The decision regarding whether to charge Trump changed dramatically when President Biden was found to have unlawfully possessed classified documents from his time as both senator and vice president. Then it was revealed that former Vice President Mike Pence also retained classified documents from his four years in office. I daresay if you go back and search the homes and offices of every one of our modern-day presidents, you’d find they violated this law as well.
To charge Trump and not Biden or Pence — absent any of them showing that the documents were used to accomplish an evil purpose, such as selling secrets to foreign countries or giving material to insurrectionists planning an uprising — would not be fair. Many Americans are generally confused about the differences in “harm” created by Trump, Biden or Pence keeping documents. The argument that Trump did not voluntarily turn documents over to the FBI or tried to deceive the FBI is difficult to grasp. It would seem petty, selective and highly political to most Americans.
More importantly, this would make it look like prosecutors are targeting Trump because they’re afraid of his 2024 presidential campaign and plan to use these investigations for purely political purposes. If you are going to indict a president of the United States, you ought to lead with your strongest case — not just in the evidence that could bring a conviction, but the strongest accusation of wrongdoing. Fixing an election, promoting an insurrection — these are crimes that go to the heart of our democracy and I cannot think of more serious offenses. If the first charge prosecutors bring against Trump — assuming he is charged at all — involves possession of classified documents, when we have no evidence that he used the documents for anything, it hurts prosecutors’ credibility and gives the appearance that they are picking on him for political motives. If they subsequently were to charge him with more serious crimes, it would make it look like they’re throwing “everything but the kitchen sink” at him.
To be clear, if there is evidence that Trump enabled secret documents to get into the wrong hands, then by all means we should bring charges against him. But I believe strongly that if you are going to charge a U.S. president, you should do so only for crimes that are tremendously significant and go to the heart of our democracy, not crimes that would seem trivial.
If all the investigations against Trump were to become cases that were prosecuted by one office, they could make this judgment easily. Prosecutors know to bring their strongest charge first — a charge so serious that it would rivet the attention of any potential juror. But with regard to Trump’s actions, we have different prosecutorial offices investigating aspects of his alleged wrongdoing. They should be conscious of the effect on public opinion if they decide to charge him with any crimes — namely, which accusations would take precedence. I do not know any prosecutor who would bring to trial a refusal to give back classified documents — especially when classified documents were subsequently found in the homes and offices of other elected officials.
I’m reminded of the line in a Pat Benatar song: “Hit me with your best shot.” That means, with a potential defendant who was president of the United States, prosecutors should do everything they can to convince the citizenry that any charges they bring are not just political chicanery.
Edward G. Rendell was the 45th governor of Pennsylvania. He is a former mayor of Philadelphia and former district attorney in that city. He served as chairman of the Democratic National Committee during the 2000 presidential election. Follow him on Twitter @GovEdRendell.