Is Donald Trump going to prison? The overwhelming consensus among many people, particularly the writers and readers of Palmer Report, is a resounding “Yes!” There is nothing I personally would like more. But I am afraid I cannot join that chorus unreservedly because of certain hesitations I have. You are welcome to try to talk me out of them. Indeed, I encourage you to do so. As I say, there’s nothing I would like better.
Most Americans would agree that equal justice under the law is a good thing. Catch a Republican on a good day and even they would agree with that ideal — in principle. But when it comes to white, rich, famous, native born Americans, America’s track record for equal justice isn’t good. (Neither is Britain’s, for that matter.) Throw in the fact that Donald Trump is an ex-president and we have an Apollo 13-size problem, and it won’t go away with logic or assertions of past examples, especially since there aren’t any past examples. America has never sent a former president to prison.
So far the sword of justice has been anything but swift and terrible against the openly criminal regime of the past administration. We’ve seen some indictments of some minor characters to be sure, and the implication that some major characters are to follow is very much in the air. But so far we have seen nothing definite — yet.
My capacity to reserve judgment and hope for the best is a little frayed. For one thing, I have been burned before. Nearly two and a half years ago, the day after the publication of the Mueller Report, I wrote an article for Palmer Report called, “Why I’m pissed off at Robert Mueller.” In it I expressed the heresy that Mueller was a coward and a fool. I got some abuse for that opinion, of course, but a lot of my abusers have since come round to my way of thinking.
As I wrote at the time, “Bob Mueller, like most Republicans, is a coward. He decided, like most Republicans have, that being a Republican is far more important than standing up and making a principled, emphatic pronouncement that everyone understands and can be understood in only one way.”
We were all profoundly let down by Mueller, because we all expected real justice from “Mueller Time.” We wanted to anoint him a hero, and many of us were so desperate to do so that they did anyway. But I was not among those anointers. I was bitterly disappointed. Mueller turned out to be a timid, ambiguous old man who merely hinted that Trump was a criminal, and he did so around much harrumphing equivocation.
All of which is to say I don’t want to be disappointed again. Once bitten, twice shy, as they say. Yes, I know that the Mueller Report was published by a Republican in the middle of a Republican administration, but I still expected more and got far less. I’m worried it’s going to happen again. I think we need to manage our expectations, or be careful with them, anyway.
Some of us who are worried are worried not because we are defeatists. Some are worried because we are realists who have seen white, rich criminals get away with their crimes in America over and over and over. Of the approximately 2,500 men and women sitting on death row right now, for example, not one of them is rich, and a disproportionately small number of them are white.
Also, we must not underestimate the weight that is being carried right now by Cyrus Vance and Letitia James and others. The prospect of indicting a former president, especially someone like Trump, is easy and downright delicious from the vantage point of my comfortable armchair where I’m sitting right now. But making that decision as a prosecutor under the spotlight glare of a seething public must keep Vance and James awake at night and wondering if they truly have a case sufficient to discharge the considerable burden they’ve set for themselves. It cannot be an easy question, indicting a former president. It’s a question that is certainly far from rhetorical.
Once indicted, there’s that other little thing we are going to need to consider. Trump is Constitutionally guaranteed presumption of innocence and due process. If he’s indicted and bound over for trial, it will be up to a jury, not us, to pronounce him guilty or not guilty. They will decide whether or not the prosecution has met their burden of proof beyond a reasonable doubt. It is for this reason that the prospective prosecution will need to make triply sure that they have met that burden before filing the case. This may explain why it’s taking unusually long. More than at any other times in their careers they will want to be absolutely sure.
That is why I won’t make any predictions. I can’t even lay odds because I have nothing to go on. I can’t say that of the x presidents indicted in the past, y have gone to prison. There is no x and therefore there is no y. There is only hope and a mountain of evidence that says that Donald Trump is an obvious criminal and a traitor who deserves to go to prison. The only question that remains is, who bells the cat?
Then there’s another question that must be troubling the minds of this administration, and neither is it a rhetorical question either. What will Republicans do if the American justice system should send Trump to prison? They will almost certainly frame it as a political imprisonment, of course, even if Trump should shoot someone on Fifth Avenue on prime time TV. The next time Republicans are in power they will send any and all former Democratic Presidents to prison as retribution. At the rate Republicans are being radicalized, that is almost a foregone conclusion. The only reason Joe Biden isn’t being impeached right now is because there are a minority of Republicans in Congress. (Even so, Marjorie Taylor Greene has recently authored articles of impeachment against Biden.)
So sending Trump to prison may not be as easy as it looks. As I say, I hope it happens, despite the dangers. I prefer justice any day, even if it’s risky justice. Nothing would satisfy me more than to see that smug idiot in lockup, and the disappointed whine of the MAGA set would be music to my ears. But I’m from Missouri, metaphorically speaking, and you’re going to have to show me. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.