Now we have Donald Trump’s fourth indictment, and the final one, assuming he does not commit any additional crimes (hardly a safe assumption, to be sure). Fani Willis’s indictment in Georgia ensnares Trump in a legal jam from which it may finally become impossible for him to wriggle his way out. The Manhattan charge over paying off a mistress is persnickety and might result in acquittal. The two indictments by Jack Smith are powerful (the first one, for refusing to give back sensitive government documents, is positively open and shut), but will be dropped if Trump or another Republican wins the election. But the Georgia case is the most inescapable, because it is not a federal crime, and thus a future President Trump can’t order the Justice Department to drop it or pardon himself.
Lindsey Graham offered up what has become the standard Republican response to Trump’s prosecution. Unlike Trump, and most of the party’s voters, Graham did not insist Trump had legitimately won the 2020 election. Instead, he argued on Fox News that it is wrong to criminalize Trump’s attempt to secure an unelected second term. “This should be decided at the ballot box and not in a bunch of liberal jurisdictions trying to put the man in jail,” he complained. “They’re weaponizing the law.”
Worse, he predicted, the successful use of a state prosecution would unleash copycat tactics on the right. “This is setting a bad precedent,” continued Graham, “and what I fear is, you’re changing the game in America and there’s no going back. We’re in for a very hard time if this becomes the norm.”
It is hardly frivolous to worry about either the psychological effects of settling a great political question through the deux ex machina of legal prosecutions or the potential for a cycle of retaliatory escalation. Nobody would hold up legal prosecution as the best possible form of accountability for Trump’s crimes or deny the risks. But the case for the prosecutions is much easier to see when held in stark relief against Graham’s proposed alternatives.
Yes, the prosecution of a leading presidential candidate could set a troubling precedent. But the other option, non-prosecution, would also set a troubling precedent: that attempting to steal an election is legal.
Of course, political candidates have a right to challenge election results, demand recounts when legally available, and expose fraud or tabulation errors. Trump was calling the election fraudulent months in advance and simply manufactured ludicrous claims of fraud as a pretext to retain power.
Put aside the legal question and consider this as a moral matter. If Trump’s attempt to disregard the election was legal activity, would that be a good thing? Should a candidate be able to go beyond legal processes and invent false claims of outcome-determinative fraud? To pressure state officials to back those false claims? Why are those important rights to safeguard?
Perhaps the argument Graham has in his mind is that safeguarding candidates’ right to demand limited, reasonable election challenges means allowing figures like Trump to pursue unlimited and unreasonable ones. That would not explain why numerous candidates for office have managed to challenge results without triggering the criminal code. It is relatively easy to draw distinctions between normal election challenges and Trump’s fever-swamp scheme.
To not prosecute Trump’s coup attempt would effectively legalize the tactics he employed. It would consecrate a new system in which an election result, even a clear one with multiple states providing a margin of error, would merely be the start of a negotiation. The outcome of the process would be determined not just by the votes but also by which party controls the legislative and judicial channels that will steer it and has the will to power to assert the most favorable claims.
Graham’s threat that prosecuting Trump will trigger Republican retaliation echoes the same warning he made when Democrats impeached Trump for inciting the insurrection. “I fear that if this model is followed in the future, impeachment to disqualify one from holding office based on partisan hatred will become the norm,” he argued. “I hope I will be proven wrong, but it seems that impeachment based on partisan differences seems to be becoming the norm, not the exception.”
As Will Saletan has pointed out, Graham led the effort to impeach Bill Clinton for lying about an affair and has called for impeaching Joe Biden over his immigration policy. So the outcome he claims to fear is actually a course he has already taken.
Graham bitterly opposed convicting Trump in the Senate. Now he opposes convicting him either at the federal level (because the Justice Department is subordinate to Biden) or the state or local level (because they are “liberal jurisdictions”). Instead, he deems the sole legitimate venue for holding Trump accountable to be “at the ballot box.”
Yet Graham has endorsed Trump’s presidential candidacy! Which is to say, despite all his crocodile tears about preserving norms, he believes Trump’s scheme to install himself as an unelected autocrat should not be punished at all but rewarded. The choice becomes clearer when you grasp that this is the true question: not how, but whether, to penalize Trump’s crime.
More on Trump’s Georgia Indictment
- Jenna Ellis Is Latest Trump Lawyer to Plead Guilty in Georgia Case
- Another Trump Co-Defendant Pleads Guilty in Election Scheme
- Sidney Powell Pleads Guilty to Interfering With the 2020 Election in Georgia
