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Why Donald Trump is not fearing a Justice Department indictment

To prosecute him for his role in Jan. 6 would just fill the widening gyre of his ex-presidential ego.
Former President Donald Trump at Mar-a-Lago in Palm Beach, Fla.
Former President Donald Trump at Mar-a-Lago in Palm Beach, Fla., on Nov. 8. Andrew Harnik / AP

The U.S. House’s Jan. 6 committee has performed its task with a dignity that verges on parody. Their solemnity was justified; an investigation into a violent ambush of elected officials at the U.S. Capitol wouldn’t play right with a laugh track. At the same time, such seriousness could also come off at times as a precious lack of self-awareness: Couldn’t they have at least acknowledged, just once, that the machinery of traditional politics, mainstream media and the law has separately and in concert been trying for years to encumber former President Donald Trump with but a single meaningful consequence for a myriad of things (financial corruption, sexual assault — hey, remember he was impeached, twice!) and so far have failed? 

For Trump, the absolute pinnacle of power is to have other people do what you want. Getting them to execute on something stupid and dangerous? Even more evidence he has control over them.

I suppose it would have undermined the enterprise to ask comedian John Oliver to stop by and perform his “We got him!” meme as a live finale to the whole thing at the last committee meeting on Monday, but that’s the ending that kept playing through my head.

Yet it’s fanciful to think that the nonbinding criminal referral the House made to the Justice Department recommending charges be brought against Trump will actually play out with the soul-satisfying sight of Trump being frog-marched down the Mar-a-Lago porte-cochère. Committee Vice Chair Liz Cheney, R-Wyo., may have assured us that “prosecutors are considering the implications of the conduct that we describe in our report,” but given the tenuous nature of all congressional criminal referrals, I suspect almost all of those prosecutors “considering the implications” of the report are the former ones talking about it on TV.

Absent even the briefest acknowledgement of the long and doubtful journey of the recommended charges unanimously approved at Monday’s meeting, the end of the committee felt a bit like lawmakers play-acting at democracy even as protections against tyranny continue to quake if not actually crumble. They are doing criminal referrals while Rome burns.

My cynicism doesn’t mean I don’t have feelings about the voluminous evidence the committee marshaled against the former president and his cronies. Trump’s actions were appalling on a civilization-shaking level. He endangered lives. He tipped the entire country toward lawlessness. I think the criminal referrals are completely appropriate and, if anything, fail to capture the true scope of his malfeasance.

Then again, my skepticism that he will face consequences for this behavior could be a defense mechanism on my part, I don’t know.

In the end, it seems much more likely that Trump will be charged — and even found guilty — for his own post-presidency pantomime of power rather than anything he actually did while in office. His sticky-fingered carry-out of top-secret documents is a rather straightforward case of did-he-or-didn’t-he compared to the tangle of intention, hearsay and free-speech issues lawyers can bat about when it comes to “incitement of insurrection” (the cause of Trump’s second impeachment trial) or just plain “insurrection” as the Jan. 6 committee put it.

Some might find it unsatisfying should Trump only ever meet justice over what could be seen as the mere lifting of some office supplies — I mean, however ripe for espionage those files may have been, I’m firm in my belief that Trump wasn’t engaging in spycraft when he took them but was just trying to add some verisimilitude to the Fischer-Price Oval Office he stomps around in these days.

You may want Trump to suffer for the violence the committee found him to have instigated, but I think it might be for the best that he doesn’t. To prosecute him for his role in Jan. 6 would just fill the widening gyre of his ex-presidential ego.

For Trump, the absolute pinnacle of power is to have other people do what you want. Getting them to execute on something stupid and dangerous? Even more evidence he has control over them. He would welcome proof that he spurred armed rebellion! (Delight in inducing others to risk their reputations and their lives might also explain how his endorsement of failed Georgia Republican Senate candidate Herschel Walker came to be.) He said as much himself in response to the Jan. 6 committee referral. “These folks don’t get it that when they come after me, people who love freedom rally around me,” Trump posted Monday on his Truth Social social media site. “It strengthens me. What doesn’t kill me makes me stronger.”

There are always losers who see attempted insurrection as bad-assery — that’s the misguided pride behind brandishing Confederate flags and a thousand teenage acts of petulant rebellion. But to be found guilty of pilfering paperwork because you wanted to Potemkin village your own presidency? How sad. How irrelevant. How weak.

I want Trump punished, but I don’t mind making the punishment the kind that would hit Trump where it actually hurt — beyond the reality-bending reach of his unthinking minions and the QAnon crowds. Put him in a prison built of Florida Gov. Ron DeSantis mentions and Georgia Rep. Marjorie Taylor Greene memes. There is nothing we can do to him using state power that would put him in as much anguish as being forgotten.

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One of the strongest grounds for prosecuting Trump for Jan. 6 is that only accountability will prevent something like it from happening again. But Trump petering into irrelevance seems like an equally strong argument. I don’t want us to forget what happened that day, but I would love for us to forget him. Wouldn’t it be amazing for him to turn into a kind of reverse Ronald Reagan, someone whose presidential career is what people fail to remember? Wouldn’t it be grand if, when I refer to “President Trump” in my old age, my grand-nieces look at me quizzically and say, “What, that guy with the worthless NFTs?”