Since at least the first impeachment proceeding against him in 2019, and accelerating after January 6, 2021, the country has been considering whether Donald Trump ought to be prosecuted for various misdeeds. I have always been skeptical about prosecutions related to purely political matters, mainly because the court of public opinion renders its own judgment. Now Special Counsel Jack Smith has changed my mind, with the stunning 37-count indictment of Donald Trump in the classified documents case.
On the one hand, the rationale for prosecuting seems straightforward. The rule of law requires that no person be above it. Ordinary federal employees are routinely imprisoned for even inadvertent mishandling of classified information, and Trump’s puzzling refusal to follow the rules was egregious.
On the other hand, until now there have been good reasons to be wary about prosecuting Trump. Political and legal accountability are to some extent substitutes. The public will have its own say about any candidate for public office, and there is genuine risk should the legal system become involved in routine prosecution of political candidates.
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