Bret Stephens

A black and white photograph of a chain-link fence, with a poster of Donald Trump pinned to it.
Credit...Mark Peterson for The New York Times

For many years, but especially the past three, conservatives have warned of the dangers of a criminal justice system that is overly reluctant to put and keep dangerous people in prison. The law is the law. Violations of it should be prosecuted. We are, and must remain, the land of equal justice, not social justice dictated by the ideological fixations of angry Americans.

These same conservatives should try being consistent when it comes to the federal indictment of Donald Trump.

It is stunning to read the grand jury’s 37-count indictment, with its depictions of a former president treating the law with the contemptuous disdain of a mafia don — but with none of a don’s concern for covering his tracks. It is even more stunning to hear what some of those in the legal community who have been defenders of Trump have to say about it.

Alan Dershowitz: “It is the kind of evidence every defense lawyer dreads and every prosecutor dreams about,” the retired Harvard law professor wrote of Trump’s recorded admission of unlawfully possessing highly classified documents.

Jonathan Turley: “Some of the evidence is coming from his former counsel, and these are very damaging statements made against him,” the Fox News legal analyst said, referring to notes made by one of Trump’s lawyers, in which the former president plots to obstruct a government subpoena. “All the government has to do is stick the landing on one count, and he could have a terminal sentence.”

Bill Barr: “It’s a very detailed indictment, and it’s very, very damning,” Trump’s former attorney general told “Fox News Sunday.” As for the suggestion that Trump is the victim of a witch hunt, Barr noted that the Justice Department had “acted in a very patient way” in trying to obtain documents from Trump, only to be met with “very egregious obstruction.”

Barr added that Trump held on to and possibly shared vital national secrets — including, reportedly, the Pentagon’s planning documents for an attack on Iran — in a way that “anyone who really cares about national security, your stomach would churn at.”

None of this will sway Trump’s base because nothing will sway them. It doesn’t matter that they were the ones most outraged in 2016 by Hillary Clinton’s alleged mishandling of classified documents. Or the most disgusted by the conclusion by the then-F.B.I. director, James Comey, that “no reasonable prosecutor” would bring charges against her. Or the most lustily cheering “Lock her up” at that summer’s Republican convention.

But what about more mainstream conservatives who know the 2020 election wasn’t stolen, that Jan. 6 was a disgrace for the ages, that Trump is a one-time-lucky serial loser whose bottomless narcissism keeps costing Republicans winnable Senate and gubernatorial races, that his entire presidency was a drunken joyride with a reckless driver careening around hairpin turns at high speed, that his renomination as the G.O.P. candidate would give President Biden his best shot at re-election and that another Trump presidency would be an orgy of petty political retribution and reckless policymaking that would make his first term seem, by comparison, responsible and tame?

They are, with few exceptions, supine.

Their excuses for Trump have run the gamut. There were legally inaccurate claims about the Presidential Records Act, which does not give Trump whatever time he wants to return documents to the archivist of the United States. There was the idea that Trump held on to the documents because he was a hoarder or that he had little idea what was in them or that any secrets they contained were not serious. The counts of the indictment powerfully indicate otherwise.

There’s also the whataboutism regarding Clinton’s emails and the documents found in Biden’s offices and garage. But the people who argue that Comey’s recommendation was a travesty of justice cannot now argue that Trump should be let off on far more serious charges. As for Biden, his case has its own special counsel: Let him come to his conclusions based on the facts.

Which leaves the argument that our democracy will be gravely damaged if the administration of an incumbent president sets the precedent of criminally prosecuting a political opponent. That’s essentially what Trump threatened to do against Clinton. That’s exactly what he sought to do against Biden by trying to dig up dirt on Hunter Biden’s business dealings in Ukraine — the subject of Trump’s first impeachment. I don’t recall many conservatives taking a bold stand then against that attempt at using the formidable powers of the presidency to criminalize an opponent.

It remains true that the federal prosecution of Trump, along with his potential conviction and incarceration, will be a fateful moment in American history. Far more fateful would have been the failure to prosecute. If Trump can be above the law, in a case of this kind, then we will have lost the rule of law.

As for larger considerations of justice, of both a legal and a cosmic kind, the English language is well stocked with phrases for occasions like this.

Turnabout is fair play.

Hoist with his own petard.

What’s sauce for the goose ….

Lock him up.

Bret Stephens has been an Opinion columnist with The Times since April 2017. He won a Pulitzer Prize for commentary at The Wall Street Journal in 2013 and was previously editor in chief of The Jerusalem Post. Facebook

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