The Ethicist
Don’t you just hate holy rollers? Those people who decry wrongdoers and say they should be locked up? They stand on their moral high horses and suggest that others have sinned in unforgivable ways. They point their fingers and say, “‘J’accuse…!” Well, I am no Emile Zola and am unlikely to win one, much less two, Nobel prizes for my written commentary on why Donald J. Trump is guilty of crimes against the American people, but I have every bit of righteous indignation and passion on the subject that Zola had about the accusations leveled at Alfred Dreyfus. Zola was stripped of his Legion of Honor status and forced into exile for his editorial about the dastardly deeds of his government. People like me will stand next to the likes of Liz Cheney (note my combination of pride and yet my shuddering that she of the far right inclination and I are somehow alike) before the reconstituted next Republican Congress or Administration, and probably be accused of our own brand of treasonous expression.
I am on record and have a growing sense of conviction that Donald J. Trump will be the first president of the United States to ever be indicted AND convicted of major felonious charges brought in the name of the American people against a former duly elected leader of the country. What a year ago was deemed unlikely and a month ago was thought to be ridiculous, has, in the last week, become a major talking point and a distinct, in not inevitable, reality. I say Bravo!
The Select Committee and the Department of Justice has had ample justification for bringing accusations and charges respectively against Trump, but the American people needed to be brought onboard for the action to get any traction. That has been problematic in a world gone mad in the past few years. People only have the bandwidth for so much conflict in their lives at any time. Between the Global Pandemic, the threat of WWIII stemming from the invasion of Ukraine and its incumbent threat against our most important defensive treaty, NATO, and now a ripping of our economic fabric via surging inflationary pressures that assault us every day, we have more conflict than we can handle. Many Republicans like Ron DeSantis, have been hopeful that we would be sufficiently distracted by our other woes to ignore the peccadillos of an ex-president. On Wednesday, DeSantis called the whole January 6th issue a “Dead Horse” upon which Americans, and especially his own Floridians, lacked sufficient interest in the face of their other problems foisted upon them personally by Joe Biden.
But now the worm is turning. I have two bell-weather friends who are both Floridians who I am certain voted twice for Donald J. Trump and at least once for Governor DeSantis. One of them publicly denounced Trump as long as a year ago and now finds every excuse to say “Fuck Donald Trump!” and while you are at it, “hanging him and putting the January 6th violators before a firing squad”, would be a good thing. He still likes to say that Trump was a better president than Joe Biden and that Biden would lose a general election against Trump at this moment in time, but he sees the handwriting on the wall about Trump’s future criminality conviction and wants to just get on with it. The other friend has stood by Trump, living near Palm Beach, he has been a regular attendee of Mar-a-Lago events in support of Trump. Just today, not coincidentally I imagine, a day after the Third Select Committee Hearing is causing Republicans to rethink their stand with Trump, he changed his tune. He said in a tweet amongst the three of us that “the Dems are doing the Republicans a favor by getting rid of Trump”. He furthermore says that the machinations of January 6th show us that “the system works” because “Trump eventually had to walk away.”
I’ll tell you what would prove to this American that the system works, and that is that Trump be indicted and convicted for his clearly criminal acts. Today I read an editorial by Neal Katyal, the ex-Solicitor General of the United States. The Solicitor General is a post that is assigned the responsibility for supervising and conducting government litigation in the United States Supreme Court and the Appellate Courts. In theory, the Solicitor General is the person in perhaps the best possible position to determine the viability of a case being brought by the American people against anyone, including an ex-president. The role requires you to be well-steeped in the law and, perhaps most pragmatically, to know the difference between which cases will prevail under the law and which will fall short of the judicial standard needed to attain a conviction. A Solicitor General is the ultimate authority on such issues of legality and reality.
Katyal is saying his editorial that he believes that Donald Trump is guilty of two of the three charges that will likely be brought against him. He is overwhelmingly guilty of 18 U.S. Code § 1512, obstruction of an official proceeding. That is a serious charge that carries a potential penalty of 20-30 years depending on whether it resulted in death of any person. He is also guilty of Conspiracy against the United States, or conspiracy to defraud the United States, which is a federal offense in the United States of America under 18 U.S.C. § 371. The crime is that of two or more persons who conspire to commit an offense against the United States, or to defraud the United States. The penalty for this offense is much harder to determine because it hinges on the penalty associated with the underlying defalcation, for which the government would have many choices. Suffice it to say, there are so many fraudulent activities by the Trump Administration that sentencing would be rather severe. Katyal goes on to say that the third and most heinous criminal charge of Seditious Conspiracy (18 U.S. Code § 2384), the very case being brought against the Proud Boys and the Oath Keepers, is not likely to be brought against Trump because it requires proof that two or more people conspired to use force to bring about the transgression of the law. If that were true, each offense or each law attempted to be avoided would carry a penalty of twenty years each.
I am no Solicitor General but I disagree with Katyal on this point. The very fact that I find so objectionable about Donald Trump and how he comports himself and has done so for many years, long before he even entered politics, is that he is a bully. Bullies use force every moment of their existence to get their way. We know that Trump bullies women and minorities. He bullies political rivals and foreign leaders. But mostly, he spent the waning months of his term in office by bullying the American people and their representatives in Congress into thinking that the election was rigged and that he had actually won the election, an assertion he stands by rabidly even today. Since no law in the United States is more sacred than the Constitution and no process more important than the electoral process, what Donald Trump did was a conspiracy perpetrated through force upon the country, and was therefore the ultimate criminal act worthy of the maximum penalty (without the hope for pardon or parole). To convict him of anything less is falling short. This particular ethicist has spoken and will stand on the ramparts yelling “J’accuse…!” as loudly as he can.