Indictment of Trump — the Leading Candidate To Unseat the Administration — Is a Moment To Keep an Open Mind and Wait for the Facts

The burden is on this administration to demonstrate that the case is so strong that failing to bring it would be a great injustice.

The indictment of President Trump better be the strongest case of obstruction of justice since Richard Nixon. Anything short of that will smack of a partisan double standard. For never before in American history has the leading candidate to unseat the incumbent President been indicted by the incumbent President’s administration.

The burden is on this administration to demonstrate that the case is so strong that failing to bring it would be a great injustice. It must be far stronger than the cases that were not brought against Hillary Clinton, Joseph Biden, Sandy Berger, and Mike Pence. Perhaps it passes that test, and if it does there will be no basis for any complaint.

If it does not, the indictment of Donald Trump will seriously damage the neutrality of America’s rule of law. So let’s see what the indictment says, what the facts are and what the law is. Let’s not rush to judgment on either side. Let’s be certain that this passes a rigorous test that must be applied when a candidate for president is indicted. 

Elections should be decided by the voters, not by prosecutors, judges or jurors. If there is any doubt about whether a serious crime has been committed by a presidential candidate, that doubt should be resolved by the voters, not by prosecutors who come from an administration that the indicted candidate is trying to unseat.

The Biden administration has a heavy burden to demonstrate that they had no alternative but to prosecute. Maybe this case can meet that high standard, but citizens have a right to be skeptical. Recall that President Nixon was forced to resign not because Democrats demanded that he leave office, but because his fellow Republicans did so.

The indictment against Mr. Trump must be strong enough to generate the kind of bipartisan support that led Richard Nixon to leave office. To be sure, times have changed since the Nixon resignation. We are a more partisan and more divided nation, but there are reasonable Republicans and Democrats who are not necessarily part of the extreme partisanism that afflicts today’s Republicans and Democrats.

Let us see whether moderate Republicans support this indictment. I predicted in my book “Get Trump” that he would not be indicted merely for unauthorized possession of classified material, because so many Democrats have been guilty of the same crime. I predicted that if he were indicted it would be for process crimes such as obstruction of justice.

It must be understood that obstruction of justice requires more than refusing to cooperate with prosecutors. To their credit President Biden and the former vice president, Mike Pence, did cooperate when it was discovered that they had unauthorized possession of classified material. Mr. Trump’s failure to do so, though, is not a crime.

The Constitution empowers people being investigated for criminal conduct to refuse to cooperate with prosecutors and indeed to obstruct their efforts by constitutionally authorized means, such as invoking the Fourth, Fifth, and Sixth Amendments. Whether Mr. Trump went beyond that and crossed the line into unlawfully obstructive behavior is a matter of evidence, to which we are not privy.

So let us all keep an open mind until we know all of the facts, but let’s remain skeptical about an incumbent administration prosecuting the leading candidate to unseat that administration in the forthcoming election.