Failing to prosecute Donald Trump is rooted in the fear of Republican retaliation

When it comes to deciding whether to prosecute the former president for crimes committed before, during and after the J6 insurrection, everyone in Washington seems to have gotten a case of the vapors.

But there’s something missing from the debate. The problem isn’t a matter of principle. It’s not a matter of whether the United States should stoop to the level of some lawless tyrannical banana republic.

It’s a matter of fear – fear of retaliation.

Fear of the Republicans once again abusing their power.

Given the way we talk about going somewhere America has never gone before, you’d think the hesitation was grounded in some kind of noble purpose, as if noble purpose were a good enough reason to allow Donald Trump to live above the law while everyone else lives under it.

Don’t let the press corps’ God’s-eye view fool you.

This is about the Republicans striking back, for no reason other than having the power to strike back, and making the Democrats pay.

We already know they will.

The Republicans are talking about impeaching Joe Biden.

"You [Biden] have stood down ICE and you've stood down Border Patrol, and guess what? That's the impeachment hearing I want to hear," said Steve Bannon in a January episode of War Room, a podcast.

"You're going to sit there for day after day and week after week and we're going to bring the witnesses … of what you did to this country and what you did on the southern border,” Bannon continued.

Bannon piled on this week, threatening US Attorney General Merrick Garland with impeachment if he indicted the former president.

“I dare Merrick Garland to take that crap there last night, and try to indict Donald J. Trump,” he said after the J6 committee’s first hearing.

“We dare you because we will impeach. We’re winning in November and we’re going to impeach you and everyone around you. Screw the White House, we’re going to impeach you and everyone at DOJ.”

Bannon is hugely influential.

There’s no doubt his influence is why Fox Business’s Maria Bartiromo asked Kevin McCarthy on Sunday about impeaching Biden. The House minority leader warned against it: “One thing we learned that the Democrats did is they – they used impeachment for political reason.

“We believe in the rule of law,” he continued. “We’re not going to pick and choose just because somebody has power. We’re going to uphold the law. At any time, if someone breaks the law and the ramification becomes impeachment, we would move towards that.

“But we’re not going to use it for political purposes.”

That’s the smart thing to say before the midterms. But make no mistake, Bannon’s grip on the House GOP is tighter than McCarthy’s. If he’s saying the Republicans will impeach, odds are they will impeach.

For this reason, you should take everything McCarthy says and turn it upside down. “We believe in the rule of law,” he said. No, they don’t. “We’re not going to pick and choose just because somebody has power,” he said. Yes, they will. It’s the only reason they’ll have.

Merrick Garland will be the first to say the Department of Justice does not get involved in political matters. If you have paid even the least bit of attention over the past five years, you know that that’s phony. It would be great if the DOJ really didn’t get involved, but it does.

Even so, the attorney general’s appeal to high-minded values obscures the real problem, which is the legitimate fear of the Republicans grossly abusing their power for no reason other than having power to abuse. Think beyond impeachment, which, remember, is a political matter. Think instead about law enforcement agents arresting politicians. Think about things that have been heretofore unthinkable.

Likely, the Republicans have already thought about it. If Garland indicts Trump, they’ll have reason to put that thought into action.

It should be clear that the Republicans are the problem. They are America’s hostage takers and random seekers. It should also be clear that by declining to bring charges against Trump, Garland wouldn’t just be letting Trump get away with his crimes. He would be, in his view, and in the view of many Democrats, doing the country a service.

He would be choosing peace, instead of war.

Former federal Judge Mike Luttig, a fact witness during Thursday’s hearing by the J6 committee, seemed to understand Garland’s predicament. Luttig helped Mike Pence’s legal counsel, Greg Jacob, in an effort to push back against Trump’s campaign to pressure the former vice president into going along with his attempted coup.

Luttig was unambiguous about Trump’s “constitutional mischief.”

Though Garland may fear triggering a war with the Republicans, Luttig said, in a written statement submitted to the committee in advance, the war had already been triggered. J6 was merely a punctuation of it.

January 6 was but the next, foreseeable battle in a war that had been raging in America for years, though that day was the most consequential battle of that war even to date. In fact, January 6 was a separate war unto itself, a war for America’s democracy, a war irresponsibly instigated and prosecuted by the former president, his political party allies, and his supporters. Both wars are raging to this day.

But there’s only one way for the war to end, Luttig said.

A peaceful end to these wars is desperately needed. The war for our democracy could lead to the peaceful end to the war for America’s cultural heart and soul. But if a peaceful end to the war for America’s democracy is not achievable, there is little chance for a peaceful end to that war.

The settlement of this war over our democracy is necessary to the settlement of any war that will ever come to America, whether from her shores or to her shores. Though disinclined for the moment, as a political matter of fact only the party that instigated this war over our democracy can bring an end to that war.

Is that fair? Is that right? Is that justice?

Is it in keeping with the ideal of equal treatment under law?

No, it isn’t.