The New York Times takes a turn at pearl-clutching. They’ve enlisted Jack Goldsmith, who served in the DOJ’s Office of Legal Counsel during the Dubya administration, to warn us about all the perils of prosecuting Donald Trump for his failed coup. Goldsmith wasn’t the worst of Bush bunch. He authorized warrantless wiretapping which is a rather large mark against him, but he also essentially resigned over the administration’s torture policies. Maybe he’s the most reasonable Republican still alive, I don’t know.

Either way, his argument is unfocused hot garbage. It can be summarized as saying that a large portion of the country doesn’t have faith in the impartiality of the Justice Department because of a variety of things, mostly either relating to the Russia investigation of Trump or the Hunter Biden plea negotiations. In addition to this, because the prosecution is happening at a time when Biden and Trump are getting ready to face off against each other again, it looks like a politically motivated prosecution aimed at helping the president. Finally, he sees the charges in Jack Smith’s January 6 case as novel and thereby somehow dubious, in contrast to the Smith’s stolen documents case which he sees as grounded on well-established law and charges. For these reasons, he sees the decision to take Trump to trial over January 6 as “a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.”

To begin with, he makes a logical error when he distinguishes between the merits of Smith’s two cases but doesn’t distinguish between the harms they will cause.

Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power…

…The documents case is far less controversial and far less related to high politics. In contrast to the election fraud case, it concerns actions by Mr. Trump after he left office, it presents no First Amendment issue and it involves statutes often applied to the mishandling of sensitive government documents.

This probably has things backward in the sense that most people, regardless of partisan preferences, see the failed coup as a more obvious crime than the documents case. The documents case is really something that would not have been charged at all if Trump had simply turned over what he had, as Joe Biden and Mike Pence did when they discovered they’re still in possession of some classified material. It’s different than the January 6 riot, which everyone watched on their television sets. Hundreds of people have already been convicted for the participation in that riot, and if Trump is added to the list it won’t seem like it’s a double standard in that respect.

More importantly, insofar as much of the Republican base is already convinced that the DOJ is partisan and illegitimate, they’re not going to accept the documents verdict  because it is grounded in more established law. Those folks won’t see a lick of difference between convictions in either case. If every risk Goldsmith identifies with the January 6 case applies with equal force to the documents case, then there’s no point in talking about their relative merits.

He tries to get around this by adopting the disgraced ex-president’s talking points on his “intent…his freedom of speech and…the contours of presidential power…” He even makes the “criminalization of politics” argument, as if attempting a coup has “always been commonplace in Washington.”

It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of and amid demands for special counsels, indictments and grand juries.

Goldsmith’s argument really comes down a concern that prosecuting a coup attempt is something much of the country won’t like, and that as a result people who are okay with (right-wing) coup attempts will act badly in the future as a result. They’ll pressure Republican lawmakers to make specious criminal charges against Democrats. They’ll lose respect for the Justice Department and the rule of law.

But how exactly could these people have any less respect for the Justice Department and the rule of law than to renominate Trump as their presidential candidate?

It also must be pointed out that there’s another half of the country. The people who voted for Biden and Kamala Harris still have faith in the DOJ and the rule of law. Failing to hold Trump accountable for trying to steal the election would diminish that faith, leading to a complete lack of trust in the population. You can’t improve your image by losing the people who still support you.

I don’t know why the New York Times publishes this shit. Last week, it was the Washington Post arguing that it’s too hard to imprison Trump and he should get a fine and community service as punishment for his coup attempt. That’s a topic in our upcoming podcast.

Look, I know our country is in trouble and at risk of coming apart at the seams. We don’t need hand-wringing about it. We need to attack the source of the problem, which is indubitably the influence and criminality of Donald Trump. Can’t we just get on with it?