Indicting Trump would be incredibly controversial

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Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter @JillFilipovic. The opinions expressed in this commentary are her own. View more opinion on CNN.

CNN  — 

After more than a year of digging through evidence to understand what happened on one of the darkest days in American history, the House January 6 committee has issued its findings: Former President Donald Trump aided an insurrection and should be charged with multiple felonies.

That conclusion is extraordinary, unprecedented and wholly necessary exactly two years after Trump sent a late-night tweet to his supporters to come to Washington, D.C., on January 6, 2021, promising that it “will be wild!”

The question, though, is what the Department of Justice will do, and what the consequences of that decision may be. Indicting Trump would be incredibly controversial and would no doubt enrage many. And there are risks, too, of fueling the perception that Democrats are using the DOJ to go after political opponents. If it were simply about partisan revenge, such a prosecution would be disgusting and egregious.

But the committee’s findings are about a shocking attack on American democracy, one with which the nation has not fully reckoned. How strong are our democratic institutions if those who attempt to level them can simply walk away without being held accountable? Can a democracy thrive if attempts to topple it are simply washed away?

The January 6 committee recommended that Department of Justice prosecutors proceed with four criminal charges: assisting or aiding an insurrection, conspiring to defraud the United States, conspiring to make false statements and obstructing an official proceeding of Congress. Its final report, to be released Wednesday, will provide justification for recommending the charges, but a referral does not require the Justice Department to act.

These are serious accusations, but the committee has spent months interviewing witnesses, evaluating the evidence and putting together a full and coherent story about what led up to the January 6 insurrection, what happened that day and what played out in the aftermath.

That story is damning. Witnesses testified that Trump knew that the January 6 protest over the 2020 election had spun out of control into violent chaos and was told repeatedly that he should ask rioters to leave. He did not do so for hours, even as he watched the carnage on television, according to the panel.

Evidence showed that Trump was told multiple times there was no evidence of election fraud. Yet he continued to claim that the election was stolen — and raised $250 million from his fans on these false claims, according to the committee.

Rep. Liz Cheney of Wyoming laid out the weight of what happened that day. The United States has been a great democratic experiment, and since George Washington turned the office of the president over to John Adams, the American tradition of the peaceful transfer of power has been an integral part of our nation’s stability and well-being.

In America’s proud democratic history, no President has ever done what Trump did: try to install himself in office by disputing the results of a free and fair election, Cheney said.

That so many Americans fell for the lie that the election was stolen and were willing to engage in acts of violence in furtherance of it is a national shame, and it’s unclear how to solve this problem — all the facts in the world don’t seem to sway people who are deeply committed to their own conclusions.

That a former President would encourage his followers to subvert American democracy and break our national tradition of a peaceful handover, though — that’s something for which there are political and legal solutions.

Should the Department of Justice move forward with criminal charges, it will cause an avalanche. Trump supporters, and the former President himself, will be livid.

It seems like a foregone conclusion they will claim that the charges are politicized and trumped-up, leveled because Trump is a threat to the “swamp” and “deep state,” and that Democrats fear him so much they are willing to shut him down using any means necessary. An indictment would be hugely divisive in an already-divided nation.

In that most basic sense, I do not want Trump to be indicted. It is not good for a nation to be trying and potentially imprisoning its former leaders, even unpopular ones. There is also the risk that charging Trump with crimes would create a cycle of recrimination and revenge from Republicans.

But it’s worse to allow a former leader to destroy the nation’s trust in elections and its democratic processes. If there is no penalty, what will prevent others from doing the same in the future?

There is no evidence that Trump regrets his actions. He continues to spread the lie that the 2020 election was stolen, and even before the 2022 midterms, he was planning to replay his election fraud claim if his favored candidates lost. He is running for President again, and if he wins, he may use his power to destroy American democracy as we know it.

In the age of Trump, parts of the Republican Party have been hollowed out for conspiracy theorists, racists, antisemites, liars, religious extremists and adherents to the cult of MAGA.

The GOP has become so intellectually bankrupt that it didn’t even bother with a platform in the last presidential election, instead essentially saying that its policy positions are whatever Trump wants. Some Republican politicians, and voters, seem to be fine with an America run by a despot, as long as it’s their guy.

But other Republicans understand just how big a monster they’ve created and don’t like where this horror story is going. They should demand that the US justice system does its job.

There is no perfect playbook for how to handle such a situation. But nations that have undergone major traumas need truth and reconciliation. They don’t paper over and forget what happened.

The January 6 committee’s findings, and its referral to the Department of Justice, are the first step. Taking the case to another vaunted American institution — our justice system, where defendants are presumed innocent and the prosecution must build a case for guilt beyond a reasonable doubt — is the necessary next one.