Donald Trump Must Face Federal Charges

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Republicans understand that politics is war by other means, and that the ‘other means’ is theater.  As national attention turns to the House Jan 6 Hearings, compelling theater themselves, the GOP’s offstage antics escalate. In advance of Cassidy Hutchinson’s testimony,  a weapon-toting Missouri senatorial candidate issued a “RINO hunting permit” in a video ad. Mary Miller, R-IL, called the overturn of Roe “a historic victory for white life.” And after testimony from rioters on July 12, a Trump spokesman called what the men had told the committee “innuendos and lies.”

But before writing off the theatrics of the GOP as a mere sideshow, we should pause to remember how Adolf Hitler snatched victory from a catastrophic attempted putsch in 1923. 

In November 1923 police fired on a raucous gang of about 2,000 insurgents in downtown Munich. Fourteen attackers and four policemen died. Hitler and eight comrades were charged with high treason. A guilty verdict could have meant years in prison and, in Hitler’s case, long-term deportation to his home country Austria.

Hitler, however, transformed a crushing defeat into victory because sympathetic Bavarian judges allowed him to take center stage with a big lie. While his co-defendants pleaded not guilty, Hitler proudly took responsibility for the treasonous debacle. For 24 days in court he raged, often for hours at a time, against the “Jewish-Marxist criminals” whose surrender to Allied armies in 1918 had been the “greatest disgrace in German history.”

Hitler’s narrative converted treason against the new democracy he despised into an act of courage. “Even if you [judges] find us guilty a thousand times over,” he declared, “the goddess of the eternal tribunal of history will smilingly tear apart the … sentence of the Court because she will acquit us.” 

Hitler did not have to await the verdict of history: his paltry five-year sentence was commuted before Christmas. Hitler gloated that the trial had “enormously increased people’s enthusiasm.”  It made him an international celebrity, decades before television and Twitter.

In subsequent years, while ordinary politicians debated policy, Nazis continued to wage war against the government they despised. As Nazi propagandist Joseph Goebbels put it, “We will use democracy to destroy democracy.” But while outrageous lies and sporadic terror solidified hard-core Nazis, the Weimar Republic stood firm. Voters, with turnout rates above 80 percent, cast less than three percent of their ballots for Nazi candidates.

Then, history intervened. With the onset of the global Great Depression, unemployment climbed to 33 percent. Inflation went sky-high. Political gridlock paralyzed the government. In five national elections from 1931-32, voters shifted from moderate to extreme parties, and the Nazi vote ballooned to over 30 percent. 

Against the clear and present danger of Nazism, the opposition fragmented. Internecine rivalry split Socialist and Communist voters, who together polled slightly better than the Nazis. With the Catholic party holding fast slightly above 15 percent, the remainder of the middle vote dispersed. Ever-conscious of media coverage the Nazi Party escalated its violence, fraud and libel — crimes that became virtues in its imagined war for survival against a fictitious “Judeo-Communist” conspiracy.

No one wants to make facile comparisons between today’s GOP and Nazism. ButTrump mirrors Hitler’s delusional rants when he calls the ”stolen” election, “the greatest crime in history.” Fact-checking is pointless because politics, partly due to his antics, has become a spectacle. Each outrageous lie brings an opportunity for loyalists to pledge their allegiance in a war against values they despise.

For example, the “Stolen Election” fraud drove not only insurrectionists and their President to abandon democratic principles on Jan 6, 2020, 147 members of Congress who refused to certify the 2020 election followed their lead as well. Attacks on representative democracy have escalated as state legislators and the Supreme Court brazenly thwarted majority rule on reproductive choice, gun ownership, and the separation of church and state. In the theater of political war, each affirmation of “Stop the Steal” became a “winning strategy” for over 100 2022 GOP primary candidates.

Thanks to the moral courage of the Jan 6 House select committee witnesses, the Trump conspirators’ treasonous intent and criminal acts have been, and will continue to be, revealed. And predictably, Trump roared: “There’s no cleaner example of the menacing spirit that has devoured the American left than the disgraceful performance being staged by the ‘unselect’ committee” and derided Hutchinson as “a total phony and “leaker.” 

At this historic juncture, the hearings have reversed the endemic contrast between the aspirational Left and the opportunist Right, in which the former is vulnerable to disagreements about priorities and tactics and the latter solidifies in its resounding opposition to progressive change and penchant for leader-adulation. Testimony at the Jan 6 hearings has transformed the Left into a unified front as the “Party of No:”  to echo Representative Jamie Raskin (D-MD) the motto of the Democratic party could be “No more carnage!”

Patriotism infused Democrats’ faith that pursuing this investigation was essential: heading into the election season, they must continue to hammer home that message. In the words of Stephanie Murphy (D-FL), “It’s about protecting the country we love. And it’s about preserving what actually makes America great: the rule of law, free and fair elections, and the peaceful transfer of power.”  Democratic candidates can simultaneously express their pride as members of the party that criminalized the “Stop the Steal” coup, and at the same time, advance the specific aspirations that match their constituents’ dreams.   

Trump’s hold on the GOP is cracking at the edges, and at the center. Roger Stone clashes with Steve Bannon. Republicans in Congress dodge the press. Lindsay Graham (R-SC) dodges a subpoena from Georgia. Early in the hearings,  opinion polls registered the impact of testimony from White House insiders. After day seven of the hearings, polls indicated that Republicans’ disenchantment with the GOP and a Trump-based split in party loyalty may now give Democratic candidates an edge in November. A backward glance at Hitler’s rise should give us cause for hope: despite our anti-majoritarian Constitution, we have an advantage over the multi-party Weimar Republic because in a two-party system, if one of the two splits, the other reaps the rewards. 

Still, the Trump organization’s former fixer, Michael Cohen, advises caution. “Donald Trump is the greatest grifter in the history of the United States,” he reminded us; “it’s sad to see that there are so many people out there that have so much faith in him, after they see exactly what is going on.”  Former Oath Keeper Jason Van Tatenhove also worries. “They have this scam going and they’ll keep scamming people,” he said.

In order to sustain the political momentum generated by the hearings, the Department of Justice must immediately seize center stage as soon as the last session concludes. Federal prosecutors have brought criminal charges against over 700 low-ranking defendants, and the House Select Committee has now exposed their leaders’ crimes. If Merrick Garland hesitates, he risks allowing Republicans to turn their rhetorical guns against the waffling Joe Biden. 

As Associate Justice Judge Ketanji Brown Jackson reminded us, ‘Presidents are not kings.” This means they cannot use the machinery of democracy to destroy democracy by overriding our votes. By a slim margin, most Americans believe Trump should face criminal charges. But even his non-criminal acts—constant, public lying about the 2020 election, tear at the fabric of our political culture, As conservative Judge Michael Luttig warned, “False claims that our elections have been stolen from us corrupt our democracy, as they corrupt us.”

Four months may be too little time to complete an unhindered Department of Justice prosecution, and state and local elected officials may manage to steal the November election. But it’s enough time to begin one. What will history say about an Attorney General who visited Ukraine to endorse the hunt for Russian war criminals but did not even begin to prosecute the criminal conspiracy to overthrow the 2020 election in the United States? 

Let’s not find out.

Claudia Koonz is Peabody Family Professor of History, Emeritus, at Duke University.