Are the galaxy brains up to their old tricks?

Donald Trump tried to overthrow the government of the United States via violent insurrection, which is a crime, or rather a bunch of crimes. There’s little evidence that he will ever be prosecuted for this. As to why, Jeremy Stahl interviewed several former prosecutors and defense attorneys involved in analogous prosecutions, and several theories emerged:

(1) Prudence/cowardice. Trump isn’t being prosecuted because doing so would make us a banana republic, where the new regime treats its political opponents as if they were criminals. Of course things get pretty awkward when they actually are criminals. Then not prosecuting them makes you look kind of like . . . a banana republic. How we got here I haven’t a clue.

(2) The DOJ in particular may be hoping that New York state pursues civil wrongdoing charges against Trump personally, which have a lower standard of proof than criminal charges, and are less politically fraught. The problem or rather one of the problems here is that Trump’s endless financial crimes are a separate matter from the whole conspiring to overthrow the government thing.

(3) A really creative bit of thinking here is that we’re heading toward some sort of Spiro Agnew type arrangement, where Trump agrees to take a plea deal, in which he agrees not to run for office in return for not doing any jail time. “Really creative” is unfortunately a synonym for really ridiculous. Agnew was offered a plea deal because of the bizarre circumstances surrounding his case: Watergate was in full swing, it was becoming obvious that Nixon might not survive the scandal, and having a petty crook who had kept taking kickbacks from Maryland contractors after he became vice president ascend to the presidency wasn’t acceptable to AG Elliot Richardson (This was back when Republican AGs weren’t automatically crooks themselves. Oh they had fashions in those days!).

(4) An even more creative bit of thinking, which I suspect unlike the Agnew Redux theory may be a real thing that is happening, is this:

One final possibility that no prosecutor will ever admit to is this: Holding the threat of prosecution over Trump’s head in the hopes that he doesn’t run for office. The implication of this move is that if he decides to go forward with a 2024 candidacy, then he will face prosecution, and if he doesn’t, then he won’t. This idea has some intuitive appeal—it theoretically keeps Trump from threatening our democracy again and it doesn’t put the country through the turmoil of sending  a former president with a wide base of support to  prison.

Stahl points out this is a terrible idea for several reasons — for one how could such an informal deal ever be enforced, given that Donald Trump’s idea of game theory is defect defect defect, and then defect again — but I get an uneasy feeling that something like this may explain, at least partially, what’s going on, or more accurately not going on.

Why? Because it would represent yet another example of the same kind of galaxy brain thinking from various elites that got Trump elected president in the first place. James Comey had to pursue But Her Emails and write that last second letter because Hillary was going to win the presidency, and he couldn’t afford for the FBI to look like it had helped her out, by not pursuing this Very Important Investigation. The people running the New York Times were of course thinking exactly the same thing when they treated But Her Emails as roughly as significant as Watergate and Teapot Dome combined. Indeed the media as a whole treated the entire 2016 presidential race as just another highly rated reality TV show, because after all Trump couldn’t win, so why not have some fun while enjoying the fruits of high ratings? Etc.

To be clear, I don’t think this kind of implicit art of the prosecutorial non-deal deal is the only or even the primary reason why Trump and his top people aren’t being prosecuted. Occam’s razor certainly suggests cowardice is playing a larger role. But I wouldn’t be surprised if it’s part of the mix that helps explain how it is that Trump tried to overthrow the government on national TV, and yet has paid no legal or apparently even any political price for indulging in that particular prank on the American legal and political systems.