Attorney General Merrick Garland’s decision to prosecute — or not prosecute — Donald Trump, a former president and likely 2024 Republican presidential nominee, will be perhaps the most consequential judicial decision made in modern American history.
Regardless of what the FBI’s investigation into Trump — and specifically into the classified documents seized from his Mar-a-Lago home — ultimately finds, it’s already clear that Garland is, put simply, damned if he does and damned if he doesn’t when it comes to deciding whether or not to prosecute the former president.
Garland may even have to make this unprecedented decision twice, depending on what evidence his department finds in their separate inquiry into Trump’s involvement in the Jan. 6 insurrection.
Ultimately, if the FBI’s investigation into Trump’s handling of classified material finds that the former president committed federal crimes, it very well may be appropriate and necessary for Garland to prosecute. At this point, contrary to what some on the right are suggesting, there is no reason to believe that Garland has any motive to bring charges against Trump beyond fulfilling his duty as attorney general to uphold the law.
That being said, if Garland does decide to prosecute Trump, even if this decision is based on evidence that Trump committed a serious federal crime, it could set a disturbing and damaging precedent in this country. It also would rip America even further apart politically, potentially triggering another Civil War.
As evidence of the latter, we need look no further than the incident that occurred immediately following the FBI’s Mar-a-Lago raid at a FBI field office in Ohio. A Trump supporter posted a “call to arms” on Trump’s social network, Truth Social, and attempted to storm the office armed with an AR-15 assault rifle, leading to a fatal shootout with police.
Prominent Republican Sen. Lindsay Graham predicted “riots in the streets” should the former president be indicted, and in the same interview echoed a familiar Republican talking point, lambasting the alleged “double standard” that the GOP claims exists for Trump.
In order to understand how the prosecution of a former president can detrimentally destabilize and divide a country, we need look no further than South America, where leaders of multiple countries — including Argentina, Peru and Brazil — have been sentenced to prison. Supporters in these countries believed their leader had been targeted for political reasons, even if serious crimes were committed, such as establishing far-right death squads in the case of Peru’s former president Alberto Fujimori.
While the prosecutions of those leaders were necessary and justified, each one hardened existing political divisions and damaged public trust in institutions — which is already at historic lows in the United States, per Gallup polling.
Importantly, prosecutions of high-level, controversial political figures can lead motivated parties to seek political revenge. Republicans have already shown a proclivity toward pursuing prominent Democrats for a myriad of crimes — even if facts are not fully on their side — such as their efforts to have Hillary Clinton indicted in 2016.
Should Trump be prosecuted, Republicans would be more motivated than ever to exact revenge. Minority Leader Kevin McCarthy has already pledged to investigate Hunter Biden should the GOP take back the House in November — and that would just be the tip of the iceberg if Trump is indicted.
Indeed, Republicans have already begun their crusade against the FBI’s investigation into Trump — including some in the party attacking law enforcement and calling to defund the FBI — and it is unlikely that the GOP will abandon Donald Trump’s cause, even if the FBI’s investigation uncovers criminal activity.
Even more significantly, if Garland does decide to bring charges against Trump, it would put a spotlight on President Biden, who would be forced to decide whether or not to grant a presidential pardon — a decision that will end up defining his presidency to an even greater extent than it did Gerald Ford’s.
While many have drawn parallels between the ongoing investigations into Donald Trump to those into President Nixon during the Watergate scandal, the reality is that America is even more divided and politicized today than it was nearly 50 years ago.
To reiterate, none of this is to say that Garland should avoid prosecuting Trump if the evidence shows that he committed a crime. If this is the case, the risk of not prosecuting Trump could be even greater to America’s endurance and stability.
No one should be above the law in the United States, including the president. If Trump did commit a serious crime and gets off scot-free, it will send a clear message to Americans — and to the world — that American democracy has crumbled.
However, even without knowing how these investigations will unfold, we cannot deny that, in Donald Trump’s case, the punishment may have consequences that are potentially even more devastating for the country than the crime itself.
Douglas Schoen is a longtime Democratic political consultant.