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Lock Him Up?

Several weeks before Special Counsel Robert Mueller concluded his investigation, but long after we learned President Trump had engaged in a criminal hush-money conspiracy to defraud voters, Sen. Elizabeth Warren (D-MA) spoke of the likelihood that Trump won’t last a full term in office.

“By the time we get to 2020, Donald Trump may not even be President,” Warren told voters in Cedar Rapids, IA. “In fact, he may not even be a free person.”

Even then it was hard to envision a series of events culminating in a defrocked Trump standing trial or serving time in prison by 2020. Justice Department policy prohibits prosecutors from seeking indictments against sitting presidents. Trump would thus have to resign or be impeached and removed well before the election, and Vice President Mike Pence would have to resolve not to pardon Trump for any federal crimes he may have committed. (This is likely why, around the same time, Warren called on Pence by name not to pardon Trump under any circumstances.)

In the weeks since, the legal outlook for Trump has only improved. His attorney general has declared that Trump can hobble or end any of the investigations Mueller spun off to other federal prosecutors. All Republicans save one have willfully lied about the contents of the Mueller report itself, and united behind the ludicrous view that it exonerates Trump of colluding with the Russians and obstruction of justice. (It does neither.) In the face of this mass deception, many Democrats, including the party’s leaders, have been cowed out of initiating the impeachment inquiry Mueller himself contemplated in his report’s second volume.

Under the circumstances, smart money isn’t on Trump’s presidency collapsing, but on him campaigning for re-election tenaciously, and without any regard for the law or basic decency, because his liberty may actually be on the ballot. Trump will be a free man by 2020, but he may not be one afterward.

So many Democrats have a hard enough time admitting Trump should be impeached that few have dwelled on the real chance that he’ll be indicted if he loses. But perhaps high-profile Democrats, frustrated with the dithering of their leadership, should reverse the valence of these two ideas. If Congress is determined not to hold Trump accountable, then the final mechanism of accountability is a future Justice Department, committed to giving Trump’s documented misconduct the scrutiny it deserves, and to treating pardons issued in order to end properly predicated investigations as evidence of obstruction.

Any Democrats who run for president on a commitment to giving federal prosecutors free rein to investigate Trump will face criticism from norm keepers and mainstream journalists committed to drawing false equivalence between the parties. How can Democrats spend years decrying the danger and impropriety of a president who leads “lock her up!” chants only to turn around and level the same threat at him?

The answer is that there’s no equivalence here of any kind.

First, there is an obvious difference between announcing that predicated investigations will be allowed to proceed, and calling for the imprisonment of a vanquished political rival who has already been investigated and cleared of criminal wrongdoing.

Second, if Democratic candidates want to argue that Trump and some of his family members should be tried, they would have reasonable grounds for doing so. Trump is already an unindicted coconspirator in the hush money case. Mueller’s report makes it plain that in several instances, Trump’s behavior meets all the criteria of criminal obstruction of justice, and even contemplates a future obstruction prosecution because “a President does not have immunity after he leaves office.” Likewise, while Mueller decided not to prosecute Donald Trump, Jr., for soliciting valuable dirt on Hillary Clinton from Russian agents, he made clear that Jr.’s conduct was illegal, and that other prosecutors might have chosen to seek an indictment.

The only Democrats who could make this argument persuasively are ones who already support impeachment—the view that Trump deserves to be investigated/prosecuted/imprisoned but shouldn’t be impeached is incoherent. But above and beyond the merits, test driving this argument would be a useful way for impeachment supporters to reassert some control over the public debate, which currently pits the Democratic view—that impeaching Trump is unwise or not worth the trouble—against the Republican view—that Trump did nothing wrong at all, and that Democrats and the Justice Department officials who initiated the Russia investigation are the ones who should be prosecuted.

That debate has drifted painfully and bewilderingly far from reality. Trump’s campaign chairman, vice chair, national security adviser, personal lawyer, and foreign policy aide, in addition to a number of more obscure actors, have all confessed to or been convicted of felonies stemming from their conduct during the campaign, transition, and the early days of Trump’s presidency. Trump himself has committed multiple felonies, and even more high crimes and misdemeanors, but the combination of Republican complicity and Democratic cowardice has caused the congressional mechanism of accountability to fail. It might be revived in the coming weeks, but if it is not, the rule of law can only be vindicated after Trump is no longer president, and no longer asserts control over the Department of Justice. It can only be vindicated if Democratic presidential candidates establish now that Trump and Pence can’t pardon their way into restful retirement. It can also be vindicated if House Democrats rouse themselves. And perhaps a fact-based debate over what has already been documented, and how to reckon with it in the future, will awaken Democratic leaders from their slumber, so they don’t sleepwalk their way into surrendering the rule of law forever.