A federal judge has opined that Donald Trump probably committed crimes in seeking to overturn the results of the 2020 presidential election.  It is very likely that the US Justice Department under Attorney General Merrick Garland at some point will initiate a criminal investigation into the former president, if it has not already done so.  The criminal indictment of a former president would of course be unprecedented in American history.  On its merits, it is something we would all want to see: Trump’s ongoing post-election campaign threatens to fundamentally subvert American democracy.  Will Garland prosecute?  Don’t count on it.

Trump apparently has already eluded one set of criminal charges.  Alvin Bragg, the Manhattan district attorney, has put the brakes on an investigation of the ex-president for financial fraud.  Bragg hasn’t publicly explained his position, but reports are that he was concerned that the prosecution would encounter difficulties in proving Trump’s criminal intent. Besides, Bragg is politically savvy enough to know that the decision to prosecute an ex-president can’t rest simply on the strength of the criminal charges.  It is, necessarily, a political decision.  Bragg may have felt that the risk of not getting a conviction was too great to move ahead with the prosecution. Even a hung jury would have been triumphantly hailed by Trump as vindication—another failed effort by the deep state to do him in.  Bragg may therefore have set a very high bar—a very high level of confidence in the chances for conviction—and felt that the bar had not been met.

Merrick Garland will face a similar dilemma.  A prosecution of Trump for his efforts to undo the election outcome would need to show corrupt intent on Trump’s part. Prosecutors would certainly be able to demonstrate that any reasonable person in Trump’s position would have understood that he truly lost the election, based on the information he was given by trustworthy advisers, like his attorney general and his chief of cybersecurity, among others. But Trump has an extraordinary capacity for self-delusion; he believes what he wants to believe and facts and evidence are immaterial.  All the accounts of Trump’s behavior in the run-up to the election and after indicate that Trump actually believed that he was fighting the theft of his re-election. His lawyers would have no trouble bringing to the stand a parade of witnesses who can truthfully swear that Trump privately, as well as publicly, expressed the fervent conviction that he actually won the election and that he was therefore acting righteously.  I don’t see how prosecutors can overcome a Trump defense on grounds of self-delusion.

There’s another reason Garland might be reluctant to prosecute.  The prosecution of an ex-president for political crimes, an ex-president who retains the support of more than 40% of the population, is inherently problematic. However strong the evidence, most of those supporters would regard a conviction as illegitimate.  The plain, terrible truth is that a talented demagogue with authoritarian aspirations has bamboozled much of America into believing his false claim of a rigged election. As a result, our constitutional order is under threat.  Arguably, that threat must be met politically, not through the courts. That’s why the elections of 2022 and 2024 are so important to the future of American democracy, as was the election of 2020. The threat of Trumpist authoritarianism must be defeated at the polls.