Yes, the prosecution of a leading presidential candidate could set a troubling precedent. But the other option, non-prosecution, would also set a troubling precedent: that attempting to steal an election is legal.
Of course, political candidates have a right to challenge election results, demand recounts when legally available, and expose fraud or tabulation errors. Trump was calling the election fraudulent months in advance and simply manufactured ludicrous claims of fraud as a pretext to retain power.
Perhaps the argument Graham has in his mind is that safeguarding candidates’ right to demand limited, reasonable election challenges means allowing figures like Trump to pursue unlimited and unreasonable ones.
To not prosecute Trump’s coup attempt would effectively legalize the tactics he employed. It would consecrate a new system in which an election result, even a clear one with multiple states providing a margin of error, would merely be the start of a negotiation. The outcome of the process would be determined not just by the votes but also by which party controls the legislative and judicial channels that will steer it and has the willpower to assert the most favorable claims.
Graham’s threat that prosecuting Trump will trigger Republican retaliation echoes the same warning he made when Democrats impeached Trump for inciting the insurrection. “I fear that if this model is followed in the future, impeachment to disqualify one from holding office based on partisan hatred will become the norm,” he argued. “I hope I will be proven wrong, but it seems that impeachment based on partisan differences seems to be becoming the norm, not the exception.”
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Will Saletan has pointed out, Graham led the effort to impeach Bill Clinton for lying about an affair, and has called for impeaching Biden over his immigration policy. So the outcome he claims to fear is actually a course he has already taken.
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Graham bitterly opposed convicting Trump in the Senate. Now he opposes convicting him either at the federal level (because the Justice Department is subordinate to Joe Biden) or the state or local level (because they are “liberal jurisdictions”). Instead he deems the sole legitimate venue for holding Trump accountable to be “at the ballot box.”
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Yet Graham has endorsed Trump’s presidential candidacy! Which is to say, despite all his crocodile tears about preserving norms, he believes Trump’s scheme to install himself as an unelected autocrat should not be punished at all, but rewarded.