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There is no question: Merrick Garland must put Trump on trial

If the former president and his allies can get by with nary a scratch after plotting an overthrow of the US government, then what message will that send?

The need to hold the former president accountable for any crimes he may have committed in office has never been clearer or more urgent.Jabin Botsford/The Washington Post

Last year, the Globe editorial board laid out the case for prosecuting Donald Trump for his efforts to illegally overturn the results of the 2020 presidential election. Since then, the US House of Representatives formed a select committee to investigate the Jan. 6 attack, more evidence of the previous White House’s wrongdoing has been revealed, and the need to hold the former president accountable for any crimes he may have committed in office has never been clearer or more urgent.

As we said last year, prosecuting Trump is not about partisan revenge; it’s one of several necessary steps that the federal government ought to take in order to meaningfully reform the presidency and defend American democracy. Now that the United States has gone through one failed attempt at overthrowing the government — instigated by none other than a man who was president at the time — it is more crucial than ever to show future occupants of the White House that breaking the law in the Oval Office will not stand.


But there is also another reason for the Department of Justice to hold anyone who participated in trying to overthrow the government, including Trump, accountable: Not only would it deter a future president from breaking the law in such a brazen way, it would also discourage their cronies and sycophants from playing along. Government officials at any level must be shown that they can be held personally liable for abusing their power. And if former officials can get by with nary a scratch after plotting an overthrow of the US government, then what message will that send to those with the keys to our government other than that they can get away with, quite literally, anything?

It should be clear to anyone by now that the attack on the Capitol on Jan. 6, 2021, was not an accident. It was the “culmination of an attempted coup,” as Representative Bennie Thompson, a Mississippi Democrat who chairs the Jan. 6 committee, put it during the first day of public hearings. Indeed, the committee’s vice chair, Republican Liz Cheney of Wyoming, said that Trump had led a “sophisticated, seven-part plan to overturn the presidential election.”


These are serious allegations and, so far, the committee is providing damning evidence. Trump made no effort to deploy the National Guard to defend the Capitol from a violent mob that was trying to block the certification of the election and calling for then-Vice President Mike Pence to be hanged. In fact, Cheney said that Trump told his staff during the attack that Pence deserved to be executed. Former attorney general William Barr testified that he told Trump that he had lost the election, as did many others, undermining any defense that Trump was unaware that claims of voter fraud were patently false. The committee even showed how, in quintessential Trump fashion, the former president probably even financially scammed his supporters in the midst of his attempts to unlawfully hold onto power.

It seems more than likely that Trump and some of his allies — those who explicitly outlined paths to overturn the election, such as former Justice Department official Jeffrey Clark or lawyer John Eastman — tried to corruptly obstruct Congress from certifying the legitimate electoral votes. That is at least one charge that the Department of Justice can bring against Trump and anyone who participated in his scheme, just as it already has with the insurrectionists who physically tried to impede the official proceeding by breaching the Capitol. Another charge could be conspiracy to defraud the United States if, for example, there is undeniable proof that Trump or his allies corruptly pressured election officials to change vote counts or instructed states to send an illegitimate slate of electors to Congress.


If he decides to do the right thing, Merrick Garland would be the first attorney general to bring criminal charges against a former president. That would be no small task, and there is ample reason to have reservations about breaking away from over 200 years of tradition. There are plenty of ways that a prosecution can go sideways. Trump could be acquitted, and that might only bolster his campaign for a second term.

But the reality is that inaction would have worse consequences in the long run. As dangerous as the Trump presidency was, it certainly could have been much worse. Part of the reason it wasn’t is because there were instances — albeit rare — of officials around him showing restraint and resisting his worst impulses. Fear of facing legal consequences after they left office could very well have compelled some officials to rebuff some of Trump’s most egregious orders. By not actually delivering those legal consequences, the Biden administration would only embolden a future administration to be even more recklessly unlawful because it would show that there are no consequences to breaking the law so long as you work in the corridors of power.


In the early days of the Obama administration, it was an open question as to whether the Department of Justice would prosecute Bush-era officials for the United States’ torture program. Though it was shut down, the department refused to hold anyone accountable for green-lighting it, and the architects of that program got off scot-free. The message that the Obama administration sent to its successors was clear: You can get away with torture. If Garland fails to pursue justice, he will only have amended that message to say: You can get away with overthrowing the government too.

Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.