To prosecute or not to prosecute, that’s the Trump question

Nick Donaldson / AFP

Donald Trump’s entire political career, not even a decade long, has presented one conundrum after another to America and the world. But his indictment in federal court on 37 counts related to violations of the Espionage Act put things in a whole different category.

The indictment is thorough, shocking and puts two prospects in front of the American people as the country enters the 2024 Presidential election season.

First, that the presumptive Republican Party nominee – Mr Trump is outpolling all opponents combined – will be on trial during the campaign.

Second, if he is convicted, which is a real possibility, then Mr Trump will be imprisoned. This isn’t a case about paying hush money to an adult film actor. This is about retaining top secret documents relating to war plans, America’s and her allies. His former Attorney General William Barr, said: “If even half of it is true, then he's toast. It's a very detailed indictment and it's very damning.”

The potential for this situation to spin out of control was immediately clear in the white-hot rhetoric of pro-Trump people.

Matthew Whittaker, Mr Barr’s predecessor as Attorney General, said the indictment was “the stuff of a banana republic”.

The Murdoch-owned Fox News, on the day of Mr Trump’s arraignment, went full banana republic media outlet, running a chyron under a picture of President Joe Biden giving a speech that read: “Wannabe dictator speaks at the White House after having his political rival arrested.”

From the liberal side of the argument came loud voices demanding a Trump prosecution with possible jail time if convicted saying: “Hang the consequences, no one is above the law.”

This is not entirely true. The American justice system has been known to favour those who can afford the best attorneys. The wealthy may not be above the law but they can avoid the consequences of breaking it.

Others, both conservatives and liberals, said the prospect of a former and possibly future US president being tried put the country in peril and wondered aloud whether pursuing justice to the point of jailing Mr Trump was wise. Especially since even lenient sentencing would raise the possibility that the 77-year-old might die in prison.

But America was in peril long before Mr Trump decided to run for president. He is a symptom of it, not its creator.

Those calling for the full measure of the law and punishment for Mr Trump if he's convicted forget one source of that peril: Republican politicians' unslakable thirst for vengeance. You can make a very strong case that the modern Republican Party is the end product of a half century long campaign of revenge for Richard Nixon’s forced resignation over Watergate.

In 1978, a young Republican in Georgia running for Congress, Newt Gingrich, laid it out in speech after speech. Republicans needed to stop being nice. There could only be one winner in the contest between America’s two political parties and it would be the Republicans.

No more bipartisanship, no more polite language. Scorched earth competition with Democrats was the way forward.

The change didn’t happen overnight but by the time the Republicans regained the majority in the House of Representatives and Mr Gingrich was named speaker, Democrat Bill Clinton was president, and Republicans made his time in office a misery with investigations.

Mr Clinton did help out with his reckless personal behaviour.

Mr Gingrich and company never shied away from the Watergate comparison and ultimately Mr Clinton was impeached, although he survived his trial in the Senate.

Then there is the Supreme Court. In 1987, Ronald Reagan appointed Robert Bork, an extreme conservative judge to the Court. He had been a participant in one of the major moments in the Watergate saga known as the Saturday Night Massacre.

Mr Bork was not confirmed by the Senate. Conservative Republicans howled and vowed vengeance.

It took nearly 30 years but the Republicans got their revenge. When another former US president Barack Obama nominated Merrick Garland to the Supreme Court in 2016 he wasn’t even given the courtesy of a hearing.

When I say America was in peril long before Mr Trump, at least a part of the reason is the Republican Party’s obsession with vengeance. Mr Trump speaks the language of revenge as easily as he says his name. Shortly before he was indicted, he told supporters at a rally: “I am your retribution.”

In light of the January 6, 2021 assault on the US Capitol, whipped up by Mr Trump, the threat of retribution needs to be taken seriously.

But the argument for pursuing Mr Trump is also a good one and it comes down to the charges: Espionage Act. “Espionage” is a powerful word. Charges under this act are rarely brought unless the documents in question have been shared with foreign actors.

And more charges are expected in other cases. Racketeering, another powerful word, in the case of his trying to get the 2020 election result in the state of Georgia overturned.

Fani Willis, the Fulton County Georgia District Attorney, leading the investigation has already written to the local police chief to prepare extra security for after she makes her announcement sometime in mid-July.

It is hard to see a good solution. Perhaps there is no point in looking for one. As I said, America has long been in peril, the damage Mr Trump has done to the country cannot be undone. And whatever happens, some Republican politicians will seek revenge.

“Let’s wait and see how things play out” is not the most forceful opinion in the world but it might be the right one to hold. Huge crowds were expected in Miami at the former US president's arraignment last Tuesday.

But the turnout was small and there was no violence. The rhetoric was hot from the usual suspects on Fox News and other pro-Trump media outlets, but it is possible that a bit of Trump fatigue is creeping into American life.

On a recent reporting trip to the US, I got the sense that some of the former president’s staunchest supporters were taking a step back.

“I’m not asking him to be my pastor,” one political Christian in Kentucky told me. He would vote for Mr Trump as long as he could be effective in helping him achieve his political aims.

When that is no longer the case this Republican’s transaction with Mr Trump would be over.