The Case for Prosecuting Donald Trump

Recent reports suggest that the Department of Justice is ramping up its investigation of former President Donald Trump’s criminal liability for the January 6th attack on the U.S. Capitol. The FBI search of Mar-a-Lago for classified documents has opened up a different legal front against the former president, but it is important not to lose sight of this summer’s earlier revelations that increase the chance that Trump will be prosecuted for his efforts to overturn the election and for the violence at the Capitol.

Some commentators have questioned the wisdom of prosecuting Trump for the January 6th events. Before July, we were also skeptical of prosecuting Trump, particularly for his inflammatory remarks at the “Stop the Steal” rally preceding the attack on the Capitol. We thought that Trump’s public speech on that day was clearly protected by the First Amendment: “We fight like hell. And if you don't fight like hell, you're not going to have a country anymore ... So we're going to, we're going to walk down Pennsylvania Avenue ... And we're going to the Capitol.” We were concerned that an indictment based solely on this speech would have been an unhealthy mix of politics and hindsight bias. We also worried that aggressive prosecutors could abuse such a precedent to charge other political leaders or activists for similar rhetoric if any of their followers turned to violence.