The US constitution makes clear, as if it needed to be stated, that the president "shall take care that the laws be faithfully executed." And yet, close to a year after Donald Trump stood by as a mob stormed the US Capitol, the former president, although twice impeached in Congress but not convicted, has yet to face any criminal charges over his role. That despite the fact that charges have been brought against more than 700 people involved in the riot, over 100 of whom have pleaded guilty.
Traditionally the US has frowned on the legal pursuit of former leaders by current office-holders; that would politicise the justice system, turning it into an instrument for political revenge, Trump supporters argue. And Merrick Garland, President Joe Biden’s attorney general, who sees his overriding duty as restoring the Department of Justice’s independence after four years of Trump’s routine interference, has not yet been willing to initiate criminal investigations into Biden’s predecessor.
Other states are not persuaded by the argument. France's ex-president Nicolas Sarkozy is serving two terms of house arrest for bribery and fiddling election funding, a decade after his predecessor, Jacques Chirac, was similarly convicted of corruption. France's democracy remains intact.
There are countless potential criminal grounds: Trump's attempts to obstruct justice documented by the former special counsel investigation into campaign ties to Russia, his election interference in efforts to overturn the Georgia results by on January 2nd calling its secretary of state to demand he "find" enough votes to undo his defeat and his unsuccessful pressure separately on acting attorney general Jeffrey Rosen and vice-president Mike Pence to declare the election was corrupt.
And then there was his incitement of insurrection on January 6th, committed on TV and for which he was acquitted by the Senate. Even the act of doing nothing for over three hours while the mobs rampaged through Congress was arguably a clear and criminal dereliction of duty.
Critics of prosecution say that almost all the potential charges require evidence of Trump acting “corruptly”, or in the knowledge that what he was doing – or not doing – was illegal. That may prove difficult; the criminal-law standards for incitement are very demanding, and may necessitate inference from persistence patterns of conduct. But that, surely, should properly be a matter for a jury to evaluate.
The failure to prosecute, however, will in the long run simply encourage others, or indeed a returning Trump, to engage in similar conduct. As the Boston Globe argues: “He attacked his own country. Five people died. Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial.”