This question came in from the Ask Teri tab:
I’m wondering if, in the next administration, it would be better to let Trump and the others off the hook or prosecute to them?
I understand the need to get on with the business of running, putting back, and healing the nation, but the alternative, doing nothing, seems so wrong and incentivizes future presidents to do the same or worse!
I appreciate the thoughtfulness of the question, and the acknowledgment that punishing Trump may come with a price. This similar question came from Twitter:
Notice the either/ or form of this question: Either prison or Trump gets off the hook. In fact, “accountability” and “goes to prison” are not the same. We can have one without the other.
I. Accountability
Trump can be held accountable:
- through civil actions
- through criminal prosecutions.
- in his capacity as an individual,
- as part of the Trump Org
- as part of another entity (such as the Trump campaign)
These are further divided into state and federal remedies. Any of the above can be brought under state or federal law.
For example, New York Attorney General sued the Trump Foundation (a charity) for willful self-dealing. To take another example: E. Jean Carrol’s lawsuit against Trump in which she is trying to get a sample of his DNA to prove that he raped her. A third example: the lawsuits against Trump alleging emoluments clause violations.
It seems axiomatic to me that anyone who earns or takes money illegally should have to return that money. One way for this to happens is through an audit of Trump’s financial records, which can be subpoenaed when he is out of office. Trump should have to return illegally-gotten funds with interest. He should also have to repay his back taxes.
In addition to a large tax bill coming due, and astronomical legal fees he will incur after the election, reporting shows that Trump will have to pay back $900 million in loans beginning in early 2021. The Trumps have been milking the presidency for millions, but it’s likely they’re so deep in debt that the money disappears into loan and interest payments.
The Trumps live in a bubble of debt. That bubble is very likely to pop.
One reason Trump’s cult loves him is that they think he’s a Strongman, a winner, a success. The measure of Trump’s success has been his wealth, or, rather, the trappings of wealth.
What if it’s gone? What if the Trumps have no cash pouring through their hands? What if they can no longer live a lavish lifestyle. Imagine Ivanka Trump living in a three bedroom tract house in, say, Mississippi. They will not be able to present themselves as ‘winners’ smart enough to game the system.
The Trumps will be losers. If they are losers, it’s harder to play the victim.
Any time Trump has been on the verge of financial ruin, someone bailed him out. First, his father bailed him out, then the Russians, and most recently, people trying to curry favor with the U.S. president.
Trump’s situation reminds me of that song from Aladdin:
🎵 Gotta keep,
One jump ahead of the bread line
one swing ahead of the sword
I steal only what I can’t afford
and that’s everything 🎵🎵One jump ahead of the lawmen🎵
Unless Trump can get a lucrative right-wing media business up and running quickly, very large bills will come due soon and Trump will not be able to pay.
If you’re thinking, “Lawsuits take such a long time! Who wants to wait that long?” I have news for you: Getting criminal convictions is harder than winning a civil case.
Standards of proof
Criminal convictions require proof beyond a reasonable doubt. Civil actions generally require only a preponderance of the evidence. Think of preponderance of the evidence as: there a 51% chance he’s guilty. Beyond a reasonable doubt is almost 100% certain.
So it’s easier to prove civil cases against Trump. That’s why, for example, O.J. Simpson was able to beat the criminal charge for murder but lost in the civil trial for wrongful death (and was ordered to pay $25 million in damages). The prosecutors had a higher standard of proof. Criminal trials are treated differently.
Civil v. Criminal
Civil suits are usually about compensation for injuries or damages. If you hurt someone, you have to compensate them. If you cause an accident, you pay the costs. If you take something that doesn’t belong to you, you have to give it back. Civil suits often result in the redistribution of property and money.
Criminal prosecutions are about punishment.
(There can also be restitution: A person convicted of a crime can be forced to provide restitution to victims, or return money, but mostly criminal prosecutions are about punishment.)
Punishment is the intentional infliction of pain on another human being.
In the case of the criminal justice system, the state is inflicting the pain. So we are talking about serious stuff.
Criminal trials of prominent individuals are more likely to turn into circuses because more is at stake. In a civil trial a person stands to lose money or property. In a criminal trial, a person stands to lose his or her liberty, and maybe even his or her life.
The following discussion does not mean that I think Trump won’t face criminal liability, or that he shouldn’t face criminal liability. My intention is to explode some of the myths so that we can stay grounded.
* * *
MYTH #1: If we punish Trump we will dissuade future politicians from doing the same thing.
Punishing Trump or even Trump coming to a bad end (as long as he remains a hero in the eyes of his followers) will not break up the Trump Cult or dissuade future fascists. Twenty-first-century fascists like Putin didn’t look at Hitler and Mussolini and say, “Gee, they came to bad ends. We should give up our right-wing extremist views.” They read philosophers like Ivan Ilyin and figured out how to do the fascists act better. They came up with the new, improved twenty-first-century version.
Fascism is not going to dissolve because Trump gets punished. The right-wing is not going to say, “Oh goodness, we better play nice or the prosecutors will get us.”
In fact, punishing Trump will allow him to play the victim and might anger and fire up the Qanon people. Fox is an outrage stoking machine. Punishing Trump may play right into the hands of the right wing outrage machine.
Fact: Deterrence doesn’t work.
Research shows that using punishment as a deterrent and imposing stiff punishments does not reduce or deter crime. Deterrence assumes criminal actors are rational; often they’re not. People take chances. If a person is desperate or mentally ill; if he is sure he won’t get caught or doesn’t care if he gets caught deterrence doesn’t work.
If a person is disobeying a law deliberately because he or she doesn’t believe the laws should be there, deterrence will not work.
Refusing to obey laws that are perceived as unjust has a long tradition. Susan B. Anthony was proud of her felony conviction. (She was found guilty of voting when women were not permitted.) Thoreau refused to pay his taxes because he didn’t want his taxes to fund what he considered an immoral war. I still remember this story told by my high school civics teacher: Emerson went to visit Thoreau in jail. Emerson said, “Henry, what are you doing in there?’ Thoreau said, “Ralph, the question is: What you doing out there?”
Before the Civil War, abolitionists regularly violated what they considered unjust and immoral laws. Martin Luther King, Jr. spent time in jail.
Paul Manafort, Roger Stone, George Papadopolous, are all considered heroes by America’s far right wing despite their convictions (or guilty pleas). The ones who remain loyal to Trump are considered heroes. Those like Michael Cohen are not.
My point: If people look to Trump as a hero, imprisoning him (punishing him) will not change their minds. Because punishment is the deliberate infliction of pain, he will present himself as a martyr.
In particular, deterrence doesn’t work against elected officials who campaign on a promise to break laws.
Let’s take this hypothetical situation:
Political Party A, which believes in a tightly regulated society, has control of the government for a few decades. Party A regulates industries and banks with a view to creating fairness. They mandate that all people have health insurance and wear helmets while riding motorcycles. They outlaw things like manipulating markets and fixing prices. They regulate industries to reduce toxins and harm to the environment.
Political Party B believes that government regulations are evil. They campaign on a promise to get rid of all such regulations and dismantle the agencies that enforce them.
Political Party B wins by a landslide. The elected officials immediately disregard the laws. The task of dismantling the laws will take years. They don’t wait. They ignore the laws.
Before Political Party B can finish dismantling the agencies and regulations, they lose the next election.
Party A comes to power.
Should Party A put the members of Party B who broke the laws into jail?
See the problem? (I’m not saying that they shouldn’t be put in jail. I’m saying that punishment doesn’t work as a deterrent in this case. The party members in jail will see themselves as victims of an unfair government. They’ll regroup and attack again.)
Another hypothetical. Candidate A runs for office on a promise that he will disregard the laws and do as he pleases. He wins the election. When Candidate A is voted out of office, should he be punished for doing what he promised to do while campaigning?
Most people follow the laws because they want to. For normal people, the threat of getting caught and exposed as a lawbreaker is enough to keep them in line.
Story: One time my very law-abiding husband realized he was on the light rail without his ticket, which he’d forgotten at home. The rule that all passengers must carry a valid ticket was enforced by random checks. At random intervals, a law enforcement officer would come through the car and asked to see tickets. The idea of not having his ticket and being exposed in front of his fellow commuters so horrified my husband that he jumped off at the next stop to purchase a ticket.
Okay, so what about the homeless people who got on the train without tickets? What do you do with them? Fine them? (They have no money.) Jail them? (Dumb idea. Putting them in jail won’t solve the problem that caused them to get on the train without a ticket.)
Aside: This post should have been called Fun With Criminal Law. See how interesting these issues are? Among the most important questions affecting our society are in the area of criminal law.
MYTH #2: If Trump doesn’t go to prison, it means rule of law failed.
All lawbreakers are not punished. It has never happened, and it will never happen. Prosecutors have discretion about which crimes to investigate, whether to bring charges and which charges to bring. The only possible way to punish all criminal behavior would be to live in a police state and build even more prisons.
In fact, prosecutorial discretion is a pillar of democracy. In autocracies, the leader decides who to prosecute. In a democracy, that power is given to a prosecutor. It’s one of the ways that power is divided. (Among the more shocking things Trump has done is politicize the DOJ, and threaten to use prosecutions as a political weapon.)
In other words, this will not (and should not) happen in a democracy:
When Biden was asked whether he’d want his DOJ to investigate Trump, he gave the correct answer. He said he would appoint an attorney general and leave the decision to the prosecutors.
Rule of law doesn’t fail if every lawbreaker is not punished. That’s not what rule of law means.
Rule of law is a system of government that derives its authority from a code of laws instead of the will of an autocrat. In a rule of law, democratic institutions administer and uphold the law. Democratic institutions include elections and courts.
An autocracy derives its authority from the whims and wishes of the autocrat.
Rule of law fails when authority transfers from a code of laws and democratic institutions to the whims of an autocrat.
There are many people (even Trump critics) who will find the prospect of a former U.S. president in prison garb unseemly. Trump is likely to retain a devoted following who will be furious. The prospect of Trump punished by the government may fire up and energize the far right-wing.
Some people say Trump & pals must all go to jail because poor people (and ethnic minorities) go to jail in disproportionate numbers, so rich white men should too. How about if we just stop putting poor people & minorities in jail?
I have long been a proponent of criminal justice and prison reform. I believe that our society too heavily relies on the criminal justice system to solve our problems. See these stats (it’s a page from my book, Guilty, Crime, Punishment, and the Changing Face of Justice):
Defund the police really just means stop relying so heavily on the criminal justice system to solve our problems.
While there may be good reasons for Trump to face criminal liability, I don’t believe that the criminal justice system will solve the problems that created Trump.
Tomorrow I’ll do an “ask Teri” post and work through some of the questions you all sent me.
After writing all of this, I decided to make Sections II (punishment) and III (due process) of my book for people to read free:
If you’d like to read, click here.
I think I will turn the comments on for this post.
The book is about the criminal justice system, and was intended for high school. It was originally pitched as a course in criminal law for ninth graders.
Here’s what some reviewers had to say about Guilty? Crime, Punishment, and the Changing Face of Justice
“Kanefield not only allows readers to understand how notions ofright and wrong change over time and across cultures, helping thembegin to understand the complexities of crime and punishment,but she will probably leave them eager to find out more.” —Horn Book Magazine
“This short book is dense with examples and ideas and makes a complicated, somewhat daunting subject more accessible and interesting to a younger audience.” —Booklist
“An easy and informative read, gives basic information about the criminal justice system.” —VOYA
“This book takes a look at the evolution of the American justice system. Kanefield scrutinizes the judicial system by examining current and past crimes.” —School Library Journal
“By following the law school model and exploring actual cases, readers are able to ponder abstract ideas via concrete examples.” —Kirkus Reviews
“An extraordinary book…that could well be mind-blowing to the thoughtful young reader who is ready to move beyond the black-and-white notion that a particular act is wrong simply because it is illegal.” —Richie Partington, Book Blogger
