How to prosecute Donald Trump

Where does that leave us? I submit that Trump could and should be prosecuted — in one of two scenarios.

The first scenario is an indictment that sticks to what Bill Barr has called “meat and potatoes” crimes — crimes that are, and have been, regularly charged against ordinary citizens and/or previous political figures on the basis of similar evidence. If Trump actually shot someone in the middle of Fifth Avenue, everybody would recognize that his status as a former president did not and should not protect him from the legal consequences of his actions. So for a Trump prosecution to vindicate the rule of law, he would have to be charged with a crime that everybody has heard of and knows to be routinely prosecuted, and the evidence of the crime would have to be of the sort that a prosecutor routinely uses in similar cases. That would be a good thing.

Of course, the thing about meat-and-potatoes crimes is, they usually get prosecuted by someone who is investigating a crime, not someone who is investigating a person in search of a crime. The fact that we are, six years into the Trump investigations, still discussing the man despite the fact that he hasn’t been charged of a specific, identified, easily recognizable crime should be some indication of the problem with this entire discussion. If Trump had shot someone in the middle of Fifth Avenue, we’d be talking about prosecuting the shooting, not asking what Trump should be charged with.

The second scenario is an indictment that charges Trump with a crime particular to his situation as a powerful political figure, as opposed to a meat-and-potatoes crime. Such an indictment would have to be backed by unambiguous evidence, and it would have to charge Trump under a law that, as written, was very clearly aimed at the conduct in question. (To use a constitutional analogy, an ordinary citizen cannot violate the 22nd amendment; only a person trying to serve as the president for a third term can do so. But the rule is still a clear one: You do not need to be a lawyer to grasp that it’s against the law to serve three terms as president.)