GUEST COLUMN: Weigh consequences of indicting Trump


By Dr. Roger H. Hull
For The Daily Gazette

If 100 people were asked to describe the Fifth Amendment to the US Constitution, the overwhelming majority could state it is the right against self-incrimination.

(Among those who have taken the Fifth recently is a long line of Trump acolytes, who, apparently, have forgotten 45 said, “innocent people don’t plead the Fifth.”)

Suppose now those 100 people were asked to state the premise of the Sixth Amendment. Very few could.

Every day one reads articles about whether our 45th president should be indicted for his words and actions regarding the transfer of power following his loss to Joe Biden.

That decision will be made by Attorney General Merrick Garland.

Will Garland seek to indict a former president, something that has not been done before in our nation’s history?

Presumably that decision will be made (relatively) shortly.

Pundits in the press and on television comment daily on what Garland will do.

Assuming he makes the decision to indict and gets the indictment, would he, or a special prosecutor appointed by him, get a conviction?

Here the Sixth Amendment enters the calculation. As the Sixth Amendment states, every person in a criminal proceeding is entitled to a trial by jury.

Since nearly two-thirds of Republicans and one-third of independents still believe the election was stolen from Trump, a jury trial would appear to inure to his benefit.

Why? A criminal jury trial requires a unanimous decision.

Given the fact a significant percentage of those selected to serve on a jury might well feel Trump’s actions were justified on January 6 and thereafter, Trump would ostensibly benefit from a jury trial.

Importantly, potential jurors are asked whether they have formed an opinion about the case they are about to hear. Trump supporters clearly have.

Would they answer those questions forthrightly? I have my doubts.

The decision, therefore, becomes a bit more complicated for the Attorney General. After all, while no one is (or should be) above the law, should the Attorney General bring charges when he is uncertain about the outcome? (Most prosecutors would not seek an indictment if they felt they could not get a conviction.)

To complicate matters further, if 45 is indicted and not convicted, will his standing among Americans go up? Presumably so. And, if that is the case, would Garland, in effect, end up enhancing 45’s chances for re-election in 2024 by seeking an indictment?

On the first day of law school, students learn to argue a case both ways.

When I taught law, I went a step further: I had students argue a position orally and then write a paper espousing the opposite side of that which they had stated in their oral presentation.

The Garland/Trump scenario can easily be argued both ways.

No, I am not saying I believe 45 did not commit a crime. In fact, I believe he has committed several crimes.

Instead, the argument that can be made both ways is whether a former president, who might be a future president, has his path for re-election made smoother by an indictment on which he is not convicted and, if so, whether the indictment should therefore not be pursued.

No one is above the law, including a sitting or former president.

Yet, if an indictment but not a conviction is obtained, and the former president’s position is politically enhanced by the failure to convict, should the indictment have been sought in the first place?

Doing the right thing usually bears consequences.

In this particular case, those consequences are far higher than usual, since passions have not been this high since the Civil War.

If you were Garland, what would you do?

Dr. Roger H. Hull of Schenectady is president emeritus of Union College and president of Help Yourself Win Foundation.

Categories: Guest Column, Opinion

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