Follow this authorRamesh Ponnuru's opinions

It’s natural to assume that they must also have been illegal, especially given that they culminated in a violent attack on the U.S. Capitol. Sen. Mitch McConnell, the Republican leader from Kentucky, made that assumption in his speech opposing conviction in Trump’s second impeachment trial: He said that the courts could handle Trump’s post-election conduct even if the Senate did nothing.

What that assumption missed is that offenses against the constitutional order, even serious ones, don’t always coincide with violations of criminal statutes. Even Smith has refrained from charging Trump with inciting the Capitol riot. He might be morally responsible, but that does not mean he is legally responsible, and our free-speech jurisprudence rightly insists on the distinction. The Senate’s failure to hold Trump accountable created a demand for it to be done by institutions less well-suited for the job.

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For the worse part of a decade now, we have been stuck in an ugly pattern in which Trump’s misconduct calls forth abusive or unfair responses from his opponents. Millions of Americans now think that Biden is trying to retain power by putting his main opponent in jail. That’s not the complete story: Trump did try to steal the election, he almost certainly broke laws about classified documents, and prosecutors have reasons beyond partisanship to pursue him. But it’s truer than we should be comfortable with, which is why prosecutors should have trod........

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