Should Trump be tried for what happened in the Capitol?

What remains of the Great.
What remains of the Great.
Image: Reuters/Erin Scott
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As the US reels from the shock of watching a violent mob ransack its Capitol, determined to overturn the results of a fair presidential election in favor of Donald Trump, many are looking at Congress to take action.

Besides the actual trespassers, can anyone else be held responsible for what happened the day Congress was set to certify Joe Biden’s election victory?

For example, what about the police, who didn’t act swiftly or decisively, allowing hordes to storm into a federal building, breaking into offices, looting, and risking lives?

Or the members of Congress who, inside the assembly, carried on the same agenda that motivated the attempted coup and knowingly advancing false claims to stop the certification of a lawful election?

And what about Trump?

Impeach, remove, prosecute

From his weeks-long refusal to concede elections that he lost by a large margin, to his inciting “wild” protests on Jan. 6, to refusing to call the National Guard to disperse them, there are many reasons to consider Trump a major culprit, if not the only one.

House Speaker Nancy Pelosi announced today that Democrats are ready to start an impeachment process if Trump isn’t removed by his cabinet for being unable to serve as president, under the 25th amendment. Even members of the Republican party, including Trump’s former attorney general William Barr, have decried the president’s behavior as a betrayal of his office.

But with just 12 days left until Trump’s presidency ends, it’s not so easy to decide what would be the most effective course of action, or the best choice for a profoundly unsettled America.

Ruth Ben-Ghiat, a history professor at New York University and the author of Strongmen: Mussolini to the Present, warns that keeping the president in office after the events that unfolded in the Capitol is too dangerous—not only for the next few days, but for the future of the country and its institutions.

According to Ben-Ghiat, the Trump-supporting mob was only one of the elements that allowed the coup attempt. Members of Congress who rejected the results of the election and fabricated claims of irregularities enabled what happened, and crucially, law enforcement did too.

In the attack, Ben-Ghiat recognized the traits of an authoritarian coup, including law enforcement’s behavior, which she considers deliberate. The lack of action from Capitol Police, united with the lenient behavior by some officers (including the one infamously taking a selfie with a rioter), she says, is a common trait in coups, and adds up to collaboration—either active, or passive. “Non-action by law enforcement is a classic way to enable a violent takeover,” she says, citing Benito Mussolini’s March on Rome as only the most notable example.

Although Capitol Police Chief Stephen Sund, who resigned, said the failure was one of mismanagement and defended his troops, many lawmakers have  promised an investigation into the Capitol Police’s inaction. This is important, Ben-Ghiat says, because unless democratic institutions show no tolerance toward this behavior, it risks feeding an anti-democratic movement. The sense of impunity that moved the mobs to get into the Capitol—and, crucially, get out safely—could easily escalate and enable further insurrection, if those who are responsible for it don’t pay serious consequences.

The case for moving on

But impeaching or otherwise removing Trump, and then focusing on his prosecution might not be the best course of action for a divided America, says Ken Gormley, the president of Duquesne University and a constitutional scholar with expertise in presidential pardons.

“The best thing is stability and not having another constitutional crisis, so in light of the unprecedented events [on Wednesday] the best thing would be [for Trump] to be moving into his role as a private citizen,” Gormley says.

An impeachment comes with much upheaval, and it’s too much to ask for a country in the middle of a pandemic and dealing with is consequences on health and economics. It is better to turn the page as soon as possible, says Gormley, and establish a new presidency. An impeachment would also overshadow the formation of a new administration, anchoring the nation in Trump’s era on the eve of the inauguration, rather than looking forward to Biden’s.

However, one element is indispensable to justify moving on—Trump’s cooperation. And if the decades he has spent in the public eye are any indication, there is little chance that the president will get out of the White House without any more clamor, and turn to a quiet, private life.

Another question is what might happen after the current president has left his office. Trump is involved in several lawsuits already, and more might emerge once he no longer has the shield of the presidency.

Pardon me?

Since Trump seems to be looking into the possibility of pardoning himself, it is fair to wonder whether he will seek a pardon after leaving office, and whether Joe Biden should offer one, in line with what happened after the resignation of Richard Nixon in 1973, following the Watergate scandal. Gerald Ford, who succeeded Nixon, issued a pardon of the former president in 1974 in order to help the country move on, even if much of the public opinion was against it (many think this decision was uniquely responsible in Ford’s electoral defeat).

“Ford told me multiple times that he concluded this was the best thing for the country, to put Watergate behind us, because it was just eating us alive,” says Gormley, who has focused part of his research on Ford’s pardon, and discussed it at length with the former president. At the time, he says, he wasn’t in favor of the pardon, but later came to see it as an act of great wisdom.

There were benefits to putting to rest a scandal that had gone on for years, and move the country toward healing. This is something that may resonate today, too. Like Ford, Biden is a seasoned statesman with no intention of stirring up controversy and a clear desire to unite a profoundly divided country, and restore trust in the institutions. A pardon to Trump might similarly be the fastest way to move past him.

But there is a key difference. Nixon resigned, and didn’t continue to stoke divisions in the country. By accepting the pardon, he admitted guilt, which effectively closed the Watergate chapter.

With Trump, such neat closure seems unlikely. Not only has he never offered to resign, but he refuses to accept the democratic results of the election, and has already promised his supporters, including the ones storming the Capitol, that he will continue his political project.

Should his behavior continue along this line, then it might be hard for Biden not only to consider a pardon, but not to launch a federal investigation on Trump.

“Sometimes just letting past problems recede into history and moving on has a real benefit, but there has to be cooperation from the outgoing person,” Gormley says.