Why we must prosecute Donald Trump for Jan. 6 | GUEST COMMENTARY

When a crime is committed, society has suffered a wound. The seriousness of the wound depends on the harm done in inflicting it. For that wound to achieve some degree of healing, it is essential that society acknowledges the wound suffered and does what it can to redress it in a just manner. This principle, referred to sometimes as retribution or just desserts, is the oldest and most common justification for criminal sanctions.

We can see it in the 4,000-year-old Code of Hammurabi’s attempt to codify what it regarded as just punishments for criminal acts, in the Bible’s promotion of an eye for an eye, a tooth for a tooth. The Lord High Executioner in Gilbert and Sullivan’s “The Mikado” tells us that the punishment should fit the crime. We can disagree as to how retributionist principles can be applied or when they are exceeded in implementing criminal law. For example, people disagree on whether retributionist principles support imposition of the death penalty for murderers (I say they do not), but few disagree that there must be justice or retribution for such heinous acts.

The first reason that the Department of Justice must prosecute former President Donald Trump if they believe his conduct satisfies the requirements of the criminal statutes cited by the Jan. 6 Committee is because the wound created by the horrendous attack on the Capitol and the brave police officers who defended it and the Constitution itself, can never be healed if the man largely responsible for it is not brought to justice.

According to the U.S. Attorney’s Office for the District of Columbia, as of Dec. 6 of this year, over 900 people have been arrested for their role in the insurrection, approximately 470 have pled guilty to charges related to the attack, and another 33 — including Stewart Rhodes, the leader of the Oath Keepers — have been convicted at trials. Enrique Tarrio, the leader of the Proud Boys, who was not actually present for the riot, is currently being tried for seditious conspiracy, linked to his conduct leading up to the insurrection. As Jan. 6 Committee Vice Chair Liz Cheney and others have argued, it would be fundamentally wrong and against the grain of American criminal justice to prosecute the foot soldiers of a crime while not charging the leaders, those who provoked it and committed crimes through words or deeds to support it. This is precisely what the committee accused Trump of.

The second reason for prosecuting Trump, another classical justification for criminal punishment, is based on the principle of general deterrence. The goal here is that through enforcement of the criminal law, those in the future who contemplate committing similar crimes will avoid doing so because they would now be aware of the ramifications of committing such acts, specifically criminal prosecution. As with retribution, principles of deterrence can be misused to call for overly broad prosecutions or exorbitant sentences that serve to diminish, not promote justice. In this instance however, the words and actions of Trump, as the committee noted, appear to go well beyond the minimums for what is required for a legitimate prosecution. The purpose of prosecuting here would serve as a warning to future politicians or group leaders thinking of, among other things, promoting and supporting the use of force and other illegal means to overturn a legitimate election. Not prosecuting Trump in Ms. Chaney’s words would make him unaccountable, and “without accountability, it all becomes normal, and it will recur.”

The effectiveness of general deterrence to a large extent depends on its being communicated broadly. Obviously, few criminal prosecutions would be communicated more broadly than that for a former president.

If the Department of Justice finds, as the report of the Jan. 6 Committee makes out, that former President Donald Trump’s actions leading to the insurrection at the Capitol constituted violations of federal offenses, any argument not to prosecute based on political considerations is substantially outweighed by the need to do justice and achieve general deterrence, fundamental principles of American criminal justice.

Steven P. Grossman (sgrossman@ubalt.edu) is Dean Julius Isaacson Professor Emeritus at the University of Baltimore School of Law.