Senate Dems' midterm wish: A DoJ indictment of Trump?

Michael Reynolds/Pool via AP

That’s playing with fire in more ways than one, a point that Democrats may not realize until it’s too late. The Hill reports that the beleaguered Senate Democratic caucus believes that Attorney General Merrick Garland will eventually indict Donald Trump over the January 6 riot. That belief appears to be based on two solid foundations … wishcasting and speculation:

Senate Democrats believe there is a good chance the Department of Justice will prosecute former President Trump for trying to overturn the results of the 2020 election and inciting the Jan. 6 attack on the Capitol, which would have major political reverberations ahead of the 2024 presidential election.

Democratic lawmakers say they don’t have any inside information on what might happen and describe Attorney General Merrick Garland as someone who would make sure to run any investigation strictly “by the book.”

But they also say the fact that Garland has provided little indication about whether or not the Department of Justice has its prosecutorial sights set on Trump doesn’t necessarily mean the former president isn’t likely to be charged.

In other words, this belief is based entirely on their own political need at the moment. Not that their political situation isn’t desperate enough to flail about for a lifebuoy, of course. Senate Democrats spent the last six-plus months setting expectations for their activists at an impossible level, and the oh-so-predictable effect of math on the 50/50 Senate now has them scrambling for a distraction from their utter ineptitude.

In fact, this is so lacking in any substantial information on Trump’s legal standing at the DoJ that it’s a wonder The Hill reported on this at all. We all know that Democrats on Capitol Hill want Trump prosecuted, for the Capitol Hill riot as well as other issues. They’ve been trying to get Trump charged with some sort of crime since he took office five years ago, first with the Russia-collusion nonsense and then by attempting to raid his tax returns. (The Manhattan DA and the New York AG have their own efforts with the latter.) The point of the House’s January 6 Commission has been from the beginning to find charges on Trump and those around him that they can refer to the DoJ. This isn’t exactly news.

However, the sudden realization that a botched indictment could backfire might qualify as a newsy development:

But Senate Democrats also warn that Garland needs to proceed cautiously. Any prosecution that fails to convict Trump risks becoming a disaster and could vindicate Trump, just as the inconclusive report by Robert Mueller’s team was seized upon as by Trump and his allies to declare his exoneration on a separate series of allegations.

The “inconclusive” report by Mueller was more of an indictment of House Democrats. Adam Schiff spent the better part of two years claiming to have solid proof that Trump colluded with Russian intelligence, a claim that turned out to be utterly false. Jerrold Nadler’s attempt to pressure Mueller after the report also backfired. Not that any of this made much difference to Trump’s fortunes; he lost the election by failing to rein in the chaos during a national emergency, not because of congressional ankle-biting.

In this case, though, the backfire could be more substantial:

A second Democratic senator who requested anonymity to comment on the possibility of a federal prosecution of Trump warned that it would take only one pro-Trump juror to derail a conviction and that failure to win any case in court would have disastrous consequences.

“If you pull the trigger on this one, you have to make sure that you don’t miss because this is one if you miss it essentially validates the conduct,” the senator warned.

If you come at the king blah blah blah. That’s not the real risk in this fantasy indictment, though. A successful prosecution under these terms would set precedents that Defund the Police cheerleaders in the Democratic Party might later regret:

Andrew Koppelman, a constitutional law expert at Northwestern University, told Bloomberg that Trump’s right to free speech would make any case against Trump difficult to prosecute.

“You can’t allow the government to lock up protest leaders whenever the protests produce violence,” he warned. “The Trump speech was full of lies, but that’s not a crime. He told them to ‘fight like hell,’ but that’s familiar political language that does not ordinarily produce violence.”

If we’re going to toss out Brandenburg, then which party stands to risk more? The party that (generally) backs the police and law-and-order issues, or the party that relies on street demonstrations to advance their agenda? That’s a question that Senate Democrats should be asking themselves in the midst of this wishcasting. The riot on January 6 was a shock and embarrassment, but so were the riots that took place all through 2020 preceding them that torched cities and created “autonomous zone” insurrections with support from some Democrats.

Be careful what you wish for … and what some media outlets will report.