Last week, as I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.
To be clear, Aug. 3 was a sobering and singular day for our country. Trump’s obsession with remaining in power at the expense of the constitutional right of American voters to choose our president, which culminated in the attack on the U.S. Capitol on Jan. 6, 2021, has been devastating. But the worst may still be ahead if we do not return to our roots as a nation of laws. A recent Vanderbilt Unity Poll shows that 38% of Republicans believe they support the Constitution while Democrats do not. Likewise, 33% of Democrats believe that they support the Constitution but Republicans do not. These figures send a chill down my spine, suggesting that what is really on trial is the rule of law itself.
I am among a number of jurists with experience at the highest levels of our government who grow more concerned as support for Trump mounts in direct proportion to the number of indictments against him. While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.
Sadly, this has led on the right to a growing distrust of and rage against the Justice Department. I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.
I can understand the skepticism, but based on the known facts in each case, I do not share it.
Our system of government and way of life are based on the rule of law, which is the principle that every defendant in this country is judged according to proven evidence, a known and accepted set of rules, equally enforced and independently adjudicated by a neutral judge or jury. I have often reminded the public that facts drive the outcome in every prosecution. A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate. Regardless, once prosecutors believe they may have grounds for an indictment, they cannot unilaterally indict any individual they choose. They must bring their evidence before a grand jury, which is made up of ordinary citizens, who weigh evidence and have the final say as to whether a defendant should be indicted.
Our justice system, reliant as it is on human effort and judgment, is not perfect. From time to time, we learn after the fact of a miscarriage of justice. But far more often than not, only the guilty are punished. We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.
Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence - no matter how damaging to our democracy and the rule of law. Republicans who feel aggrieved by the number of indictments piling up against Trump and others affiliated with him should bear this in mind and carefully review the facts of the cases against him rather than assuming conspiracies. I urge them to at least be open to considering that the problem may rest with Trump rather than the prosecution of him for his alleged crimes.
Let’s set aside the fact that three independent grand juries of Americans - not just three prosecutors - have indicted one Republican politician, Trump, for a variety of crimes. All crimes are important to the victims. The crimes alleged in the most recent indictment appear to be the most serious, because if they are true, then Trump engaged in crimes against democracy - crimes against millions of voters in this country. Scores of Americans who participated in the Jan. 6 riots have been held accountable. It stands to reason that the person who urged them to go to the Capitol and who stood the most to gain from interfering with the electoral count should also be held accountable.
Remember that we are not seeing Republicans arrested for wearing their Make America Great Again hats or their Don’t Tread on Me bumper stickers, both fine examples of free speech. The key difference is this: Speech that leads to crime has never been protected from prosecution. Wearing a Second Amendment shirt is not a crime, but conspiring to commit murder is a crime, separate from the murder itself. Lying to masses of Americans that their right to vote was taken away and encouraging them to take it back by any means - as Trump is accused of doing - can, based on evidence beyond a reasonable doubt, constitute a crime.
To suggest that special counsel Jack Smith’s latest indictment on the Jan. 6 assault is just an attack on free speech, as some Republican partisans are claiming, is itself an attack on the rule of law. If a private citizen had organized the events on Jan. 6, there is little doubt that they would have been arrested and prosecuted. The Trump supporters who stormed the Capitol should not be held to a higher standard than the former president. If we decide that presidents should never be charged with crimes after they leave office for actions committed while in office, we are no longer a democracy.
It may not be easy, but conversations around this case and the Justice Department demand civility and respect. The burden of proof is on the government, and the department should be given the chance to present its case, proving guilt beyond a reasonable doubt. The defendant should then be given the opportunity to rebut the charges and present his defense if he so chooses.
As someone who once led the Justice Department and has great confidence in the thousands of men and women who work there, I feel an obligation to understand why there is such distrust in our justice system. Is it justified, or is it based on political rhetoric intended to stir political passions? Constructive and civil dialogue is essential in finding the answer.
While the stakes are high for Trump, the stakes are higher for our democracy. The reality is that, while this latest indictment is momentous, the impact on the American people’s perception of it will be more important moving forward. We all have a part in shaping that perception. It is important for politicians to avoid using the indictments announced on Aug. 3 as political fodder. The media has an obligation to fully inform the public and rigorously compare and contrast these indictments with past decisions by the Justice Department to decline to prosecute - as was the case relating to classified documents with both a Democratic secretary of state (Clinton) and a former Republican vice president (Mike Pence).
Pundits across the political spectrum have a duty to be honest with Americans and to demonstrate that Trump is not being singled out and treated unfairly unless there is clear evidence to believe otherwise. The American people should withhold their judgment, consider the facts as the case moves forward, and be wary of words designed to fan the flames of partisanship. The rule of law is the glue that holds our country together. If we are to survive as a democracy, we must continue to respect and protect it.
Alberto Gonzales was the 80th attorney general of the United States and counsel to President George W. Bush. He is now the dean and Doyle Rogers distinguished professor of law at Belmont University College of Law and serves on the advisory board for the Vanderbilt Project on Unity & American Democracy.
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