JURY OF PEERS

For open minded people, the revelations presented to the nation by the ‘Select Committee to Investigate the January 6th Attack on the United States Capitol’ likely raise the question why the Justice Department has not (yet) taken prosecutorial action against the former President or any of his closest advisors. That question comes to me with increasing frequency and incredulity from my Dutch friends and relatives and it is a question that I have been pondering for quite a while. My readers know that I am no friend of the former President and have opposed first his candidacy and then his presidency with all my powers of conviction and that, for that reason, I can be accused of bias, but the evidence, surfaced over time in actions and words of the man himself and now presented to the nation by the Select Committee, is so overwhelming and convincing (as it is coming almost exclusively from Republicans who at one time or another were supporting the former President or worked closely with him) that it looks as if there is an open-and-shut case against him. If only it was that simple.

The Harvard law professor and senior fellow at the Hoover Institution, Jack Goldsmith, has provided some clear insight in the many complexities facing Merrick Garland, the current US Attorney General, in determining what, if any, criminal proceedings he could or should instigate against the former President. He has done so in a guest essay published in the June 20 edition of the New York Times under the title ‘Prosecute Trump? Put yourself in Merrick Garland’s Shoes’ https://www.nytimes.com/2022/06/20/opinion/trump-merrick-garland-january-6-committee.html

It is too early to say what will happen, but here are a few things to keep in mind:

·        The January 6^th Committee is not an official National Commission appointed by Congress like the 9/11 Commission was and will undoubtedly be disbanded when, as is widely predicted, the Republican Party will take control of Congress after the November 2022 election. It has not finished its job and may never get the time to do so.

·        Prosecution for criminal conduct by a former US President while in office is both a judicial and a political process and has never been tried before.

·        The former President has been impeached already twice but acquitted in both instances.

·        A successful prosecution for any crime committed by the former President will require a unanimous decision to convict from a 12-person jury of his peers.

·        Even if a conviction can be obtained, it is certain to be appealed up to the Supreme Court in a process that will take years and extend beyond the next Presidential election in 2024.

·        A prosecution resulting in an acquittal will have for effect that it places the President of the USA above the law in almost the same manner and measure as a decision not to prosecute would do. It will be heralded by the former President as a complete vindication.

One of the most impressive witnesses appearing before the January 6 Committee in its public hearings has been J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit and a staunch lifelong Republican.

In his prepared written statement for the June 16, 2022, hearing before the January 6 Committee he observes that we Americans are at war with ourselves and that “We Americans no longer agree on what is right and what is wrong, what is to be valued and what is not, what is acceptable behavior and not, and what is and is not tolerable discourse in civilized society. Let alone do we agree on how we want to be governed or by whom, or where we go from here and with what shared national ideals, values, beliefs, purposes, goals, and objectives – if any at all.” He speaks to the Committee and the nation of “a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor.”

In an earlier, February 14, 2022, guest essay in the New York Times judge Luttig warned of a “clear and present danger to our democracy” in that the former President and his political allies appear prepared to seize the presidency in 2024 if he, or his anointed candidate is not elected by the American people. He has since repeated this warning in media interviews given in the days after his testimony before the January 6 Committee.

So, where are we? What is Merrick Garland to do and who can come to the rescue of our democracy?     Judge Luttig, in his written statement before the January 6 Committee, puts the responsibility for ending the war among ourselves squarely in the hands of “a critical mass of our two parties’ political leaders” adding that their number needs to “include a critical mass of leaders from the former president’s political party and that those leaders need to go first.” You don’t have to be an incurable cynic to ask where in the world these leaders can be found. These ‘leaders’ have been around for years if not decades without ever putting a stop to all the acrimony, polarization, and corruption and have, in many instances, been complicit with or tolerant of the subversion of our democracy by the former President. What will compel them to suddenly see the light? Either way, the question of accountability for the well-developed plan by the former President to overturn the 2020 election remains unanswered. I find harsh irony in the thought that, had his plan succeeded, the constitutional remedy would have had to be found not in a criminal trial but in a third impeachment, a recourse that is not available now that he is no longer in office.

There are no easy options at this point. Nothing can erase the fact that we are hopelessly divided on even the question if our republican democracy is worth defending. We have become a nation of extremists on the right and on the left and cowards in the middle. And, God knows, the extremists have the guns.

It looks increasingly likely that we will just have to fight it out at the ballot box. We will see revolt in the streets if the former president gets indicted and we will see it if DOJ does not indict or if a prosecution ends in acquittal. The uncomfortable fact is that in today’s America you cannot find any 12 randomly picked American citizens who will agree that what the former President has done to overturn the 2020 election and undermine our faith in the fairness of our elections amounts to a high crime and misdemeanor. It will take only one of 12 jurors to halt a conviction.