By Chris Satullo

Let’s put the cart before the horse. It may be the only way to get the horse to stop rampaging about, knocking everything over.

Here’s the question: Once we boot Donald Trump out of office (crosses self, kisses rabbit’s foot, tosses salt over left shoulder), should he be prosecuted for any or all of his myriad misdeeds?

Or should we take the prim Barack Obama route and let it rest, declining to unearth, expose and punish the sins of the previous administration?

Before you answer, consider the possibility that Trump’s irresponsible cries about vote fraud, rigged elections and Democratic coups stem not only from his titanic ego being unable to stand losing. He may well be gripped by profound fear that a defeat will lead to jail time for the many crimes that, somewhere deep down, he knows he’s committed during his long, defiantly lawless career of fraud, capped by this four-year festival of corruption.

He’s sure Joe Biden would prosecute him, because that’s precisely what he burns to do to anyone who crosses him, in emulation of his autocratic heroes like Putin and Erdogan.

So, even if Trump loses (knocks wood, crosses fingers, eats 12 grapes), the best chance we may have to avoid Trump triggering a constitutional crisis and civil unrest is to assure him ahead of time that Biden won’t fit him for an orange jumpsuit to go with his hair.

In a recent New York magazine piece, the estimable Jonathan Chait emphatically answers my opening question:

“Lock him up? For the Republic to survive Trump’s presidency, he must be tried for his crimes. Even if that sparks a constitutional crisis of its own.”

Chait argues that not holding this gangster president accountable will only embolden and enable future presidents to spit on checks and balances and the rule of law. He grants that the question poses a painful conflict between two bedrock principles of American democracy:

“The prospect of an electorally defeated Trump, though glorious, would immediately set off a conflict between two fundamental democratic values: the rule of law and mutual toleration. The rule of law is a banal yet utterly foundational concept that the law is a set of rights and obligations, established in advance, that apply equally to everybody.

It is an ideal rather than a lived reality…The experience of Black racial oppression shows that the absence of the rule of law is a pervasive, terrifying insecurity. A society without the rule of law is one in which the strong prey upon the weak.”

But Chait goes on to acknowledge:

“Mutual toleration means that political opponents must accept the legitimacy and legality of their opponents. If elected leaders can send their opponents to prison and otherwise discredit them, then leaders are afraid to relinquish power lest they be imprisoned themselves. The criminalization of politics is a kind of toxin that breaks down the cooperation required to sustain a democracy.”

Still, he concludes:

“A democracy is not only a collection of laws, and norms of behavior by political elites. It is a set of beliefs by the people. The conviction that crime pays, and that the law is a weapon of the powerful, is a poison endemic to states that have struggled to establish or to maintain democracies…The price of escaping the November crisis, and simply moving past Trump’s criminality by allowing him to ease off to Mar-a-Lago, is simply too high for our country to bear.

It’s a great piece, well worth reading.

Another estimable Jonathan, my friend Jonathan V. Last, editor of The Bulwark, the splendid online organ of Never Trump conservatives, admires Chait’s essay but still comes down on the other side, in favor of no prosecution:

“Not prosecuting Trump post-presidency probably does create problems down the road.
But I’m not entirely sure we’re going to make it to down the road. 

“Look, we’ve got militia members running around the country sun’s out/guns out. We’ve got Hugh Hewitt’s fill-in radio host basically calling for armed insurrection. We’ve got a growing number of people glomming on to a conspiracy theory about secret satanist pedophiles ruling the world. Oh, and we’ve got the coronavirus raging out of control with the Mask Wars Part Deux looming to break out the minute after a vaccine becomes available.

“Do I think we’re headed for a total breakdown of the civic order? Probably not.
Do I think a total breakdown of the civic order is theoretically possible for the first time since the Great Depression? Yes.

“So my tentative view is that you triage the problems. And in triage terms, we try to put out the wildfire in our public square first. If we succeed, then we have the opportunity to try to shore up the rule of law.”

Democracy is a sequence of hard choices. The hardest ones, the most important ones, arise when two of our valid, founding ideals come into tension.

Ideologues say: The hell with that one; let’s just go with the one I prefer.

That won’t do.

Hypocrites say:  What conflict? I’ll bow to each ideal, then do what suits me.

That won’t do.

Patriots say: Let’s struggle to find the best way to balance the two ideals, without tossing either one to the curb.

The two Jonathans are both patriots, struggling to honor both values, but coming down on opposite sides.

I also embrace the struggle to balance competing ideals. I do have, however, a penchant for seeking to elude either-or framings, for finding a third way, a both/and solution that fully satisfies no one, including myself, but honors both values.

Here’s my try:

I’m with Chait that we can’t just shrug off Trump’s unprecedented authoritarian contempt for the rule of law. Particularly troubling is the way it has been enabled by acolytes – in the White House and on the bench – who chant the same unconstitutional nonsense from the “unitary executive” hymnal that blessed the war crimes of the Bush Administration.

It’s stunning to hear people from a party that claims to revere the Constitution spout rubbish in favor of absolute presidential power that would have appalled most of the men who gathered in Philadelphia in 1787 to craft our national charter. (Let’s leave Hamilton aside, OK?)

Obama, I think, went too far with his reluctance to expose how dark sites, waterboarding and Abu Ghraib violated our ideals and international law, while damaging our security. To Chait’s point, that indulgence of lawless state violence against feared foreigners has metastasized down the road into a presidency where rally crowds cheer as a would-be autocrat calls for lawless state violence against our own people, based on imaginary threats.

On the other hand, though my younger, fiercer self would disagree, I’ve now concluded that Gerald Ford probably did the right thing in pardoning Richard Nixon. Would the exemplary (though now mostly discarded) post-Watergate ethics reforms have been enacted if the passion and thought that created them had been channeled instead into a polarizing trial of Tricky Dick?

Still, flipping yet again, leaving it to Woodward and Bernstein, not a jury, to write the final judgment on Nixon’s crimes left room for a cottage industry of Watergate denial to spring up on the right. The partisans tirelessly spun that very real scandal as a mere political coup, which then launched a decades-long, Fox-fueled habit of bullshit investigation and sore-loserdom.

Having thus twisted myself into this knot, here’s how I slice it (while acknowledging that one of Jonathan Last’s readers offered a similar idea):

Joe Biden should announce, now, that he will offer Trump a pardon for any and all crimes committed while president. (Having typed those words, my fingers ache.) But Biden should also make clear that his first act as president will be to create a bipartisan truth commission to document the facts of Trump’s trampling of the rule of law, violations of democratic norms, exploitation of the office for self-enrichment, and treasonous courting of foreign influence in our elections. (And, yes, plenty of serious, patriotic Republicans would be available to serve on such a panel.)

Being freed of the prosecutorial need to prove crimes beyond a shadow of a doubt, the commission could candidly and expansively explain to Americans what was morally wrong and democratically damaging about what Trump, his family and his cronies did. (Do Ivanka and Jared get pardons, too? Bites knuckles. You tell me.)

The commission would probably issue majority and minority reports, particularly around constitutional issues of presidential authority, but that’s a conversation the country desperately needs to have without the Trump presidential fog machine obscuring our vision. (Oh, he’d still be tweeting, but who cares what a loser has to say?)

Left unsaid above, but still true: Biden would have no power to forestall investigations of, or issue pardons for, violations of state law that Trump committed before being elected. And those, my friends, are many in number.

So, I concede, even a Biden promise of a pardon might not quell Trump’s panic, which is now leading him to stop at nothing, no matter how damaging to America, to avoid accountability. But it would be the right, brave, patriotic, generous – thus Bidenesque – thing to do. And possibly  persuasive to the many Americans who may not love the idea of a Democratic president, but who do want the tweeting, the taunting, the recklessness and the lying to end.

It might lead them finally to tell Donald Trump to shut up, go away and stop trying to burn our house down.

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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia.