Former president Donald Trump has turned our justice system on its head. If he is convicted of various felonies, the question isn’t whether we should send him to prison, but, rather, how do we avoid doing so and still maintain the integrity of our system?
We might think of a few exceptions, but as a rule we don’t hold wealthy, famous, white men to the fullest account for their actions. Richard Nixon committed crimes and misdemeanors but avoided impeachment by resigning the presidency; he even finagled a modest rehabilitation of his reputation before he died.
Former Vice President Spiro Agnew was credibly accused of bribery, extortion and tax evasion, but he escaped prison with a plea deal that included resignation.
The allegations against Trump in the Mar-a-Lago documents case are extremely serious. Even citizens already familiar with the general outlines of his handling of classified documents may find a careful reading of the actual indictment to be eye-opening. At times I puzzled over the allegations: “He really did that?”
In fact, Trump’s former attorney general, Bill Barr, calls the indictment “very, very damning.” He added: “If even half of it is true, then he’s toast.”
So despite our history of letting celebrities and politicians off the hook, conviction is a real possibility. We presume Trump is innocent, but if he is convicted, we have to somehow summon the courage and integrity to treat Trump more or less the same as we would any other similarly convicted lawbreaker.
Otherwise our much-vaunted idea that no one is above the law loses all credibility.
How would we treat anyone else—including you and me—who is convicted of a similar crime? Consider the case of Reality Winner.
Reality was a bright, small-town Texas girl who began studying Arabic on her own while in high school. She developed an intense interest in geopolitical affairs and joined the U.S. Air Force in 2010. She was trained in intelligence and spent two years learning Persian and Pashto. She worked as a cryptologic linguist and was honorably discharged in 2016.
Reality was arrested in June 2017. Whether out of idealism, youthful imprudence or criminal malfeasance, Reality leaked classified information to a media source. She was denied bond and pleaded guilty to felony transmission of national defense information.
Her sentence? Five years and three months in prison. That seems about right.
Trump has speculated publicly—somewhat melodramatically—about his attackers wanting to put him away for 400 years. A more realistic sentence—for you or me if we committed the same crimes—might be 10 to 20 years.
But it would take a hardhearted, unforgiving Trump hater to wish to see him spend the rest of his life in prison. Let’s use the Reality Winner standard: Five years.
Or let’s make it four. Trump’s an old man, but he could probably survive four years in prison. And there’s an attractive symmetry in requiring him to reimburse our country for the four years during which we made him the most powerful man in the world and treated him as such.
A four-year prison term might be the most valuable contribution that Trump could make to the wellbeing of our nation. In fact, if we had a better record of holding everyone accountable for their crimes, Nixon and Agnew might have behaved better.
In any case, if Trump is convicted, it would be impossible to just ignore the penalty that we would impose on everyone else and still maintain our credibility as a rules-based nation that treats everyone equally before the law.
We would like to think that in a democracy everyone voluntarily follows the rules. In reality, all governments—even democracies—require a component of punitive force that gives credibility to their systems of laws.
Unfortunately, a significant number of Americans don’t take Trump’s crimes seriously. Some of them would rather fight than accept Trump’s incarceration. There could be violence reminiscent of Jan. 6. But if we can’t muster the courage and integrity to apply punitive force equitably to every citizen, are we truly a nation of laws?
