NATIONAL REVIEW | JOHN YOO | MAY 29, 2024
PHOTO CREDIT | YUKI IWAMURS/POOL VIA REUTERS | CAPTION: FORMER PRESIDENT DONALD TRUMP SPEAKS TO MEMBERS OF THE MEDIA AT MANHATTAN CRIMINAL COURT IN NEW YORK CITY, MAY 29, 2024
To limit and undo that damage and restore the rule of law, Republicans may have no choice but to respond in kind.
Now that the jury holds the fate of former president Donald Trump in its hands, we can pause to more broadly assess the meaning of his trials. Observers (this one included) have followed every cross-examination tactic and surprise witness but at the cost of overlooking the trial’s larger blow to our political and constitutional norms.
In the short term, polls suggest that even a guilty verdict will have little effect on Trump’s political standing. A Quinnipiac poll reports that a conviction would make only 6 percent of self-identified Trump voters less likely to vote for him. With Trump wrapping up the Republican nomination during his prosecution and leading in polls nationally and in six of the seven battleground states, the trials may have even helped him politically (though they might cost him in the general election).
Part of the blame for this rests with the Democrats who brought such farcical charges to knock Trump out of the race. Win or lose, the weakness of the New York hush-money trial has put Manhattan district attorney Alvin Bragg’s partisan motives on full display. He focused the trial on the salacious details of the encounter between Trump and Stephanie Clifford (the real name of pornographic-film actress Stormy Daniels), which had almost no relevance to the actual legal charges. For example, seemingly to besmirch Trump’s character, prosecutors spent time asking whether Clifford had seen Trump in bed in his underwear — he is such a bad man that he must be guilty of something, the DA wants the jury to conclude.
Meanwhile, prosecutors left the legal charges unconstitutionally vague. They elevated a claim of bookkeeping fraud, usually a misdemeanor, into a felony with serious jail time by claiming that accounting shenanigans had enabled some greater crime. Prosecutors never made clear that other crime. They have implied that Trump’s $150,000 nondisclosure agreement with Clifford amounted to an illegal campaign contribution, even though Trump surely would have paid for Clifford’s silence regardless of whether he was running for office (the test for determining what is a campaign expenditure). To make the case even weaker, the Supreme Court has held that the Constitution prohibits state officials from enforcing federal laws — that authority resides only with the president, the attorney general, and the federal agencies.
The superficiality of the facts and the vagueness of the crimes magnify the harm that Democrats have inflicted on our political norms. Make no mistake, Democrats have crossed a constitutional Rubicon. For the first time in American history, they have brought criminal charges against a former president. For the first time in American history, they have brought criminal charges against the major (and leading) opposition candidate for president during the campaign. If elected leaders, whom our constitutional system vests with the authority over prosecution, must break American political practice that goes back to 1789, they should do so for a compelling reason and an airtight case. Instead, they’ve brought a prosecution in which the facts presented had almost nothing to do with the charges and the charges are unconstitutionally vague and beyond the authority of the district attorney. The weakness of the case against Trump lowers the bar for prosecuting future presidents below that for prosecuting garden-variety criminals in New York City. While Bragg scrutinizes Trump for alleged accounting misdeeds, he has sought no bail and little jail time for such crimes as theft and assault.
Regardless of the trial’s outcome, its consequences will have a profound effect on the presidency. The weaker the Trump cases are, the more open the invitation is to future prosecutors of presidents of the opposite party. After this Trump trial, any city, county, or state prosecutor might be encouraged to prosecute any federal officer for conjured violations of a state’s criminal law or other patently partisan reasons. A state DA in upstate New York, for example, could prosecute former president Barack Obama for murder for having ordered a drone strike on al-Qaeda leaders that included an American from Buffalo. A California DA could prosecute George W. Bush for kidnapping a San Francisco resident who was captured by American forces while fighting for the Taliban. Future presidents will now have to worry about their personal legal liability every time they make a decision, which can often involve the most difficult conflicts of values, costs, and benefits. The prospect of future prosecution will encourage risk-averse thinking — a presidency filled with insurance-claims adjusters.
Even without any constitutional text, judicial rulings, or congressional legislation that immunizes presidents, American leaders for 235 years have refused to pursue departing presidents. Gerald Ford, in a great act of statesmanship, pardoned Richard Nixon even though it doomed his chances in the close 1976 election. Bush did not prosecute Bill Clinton for lying to the Whitewater special counsel, even though Clinton’s Justice Department had conceded that he would become legally liable once he left office. Obama did not attempt to relitigate the difficult policy decisions made during the War on Terror by prosecuting Bush and his aides (of which I was one). Trump did not order the investigation of Hillary Clinton, even though her intentional, illegal diversion of thousands of classified emails to her home computer network was a central theme during his campaign. Nor had local or state prosecutors dared to interfere with the workings of the presidency before.
American leaders of the past understood, perhaps only implicitly, that prosecuting past presidents would undermine the very purpose of the executive power. Presidential power is meant to be exercised in situations that legislation cannot anticipate, such as crises, emergencies, and war. In Federalist No. 70, Alexander Hamilton explains why the Founders chose to concentrate federal executive power in a single president — recall that the Articles of Confederation had diluted executive power by locating it in a Congress composed of the states. “Energy in the executive is a leading character in the definition of good government,” he wrote. “It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws.” For the president to wield this power effectively, he must have the ability to act alone with “decision, activity, secrecy, and dispatch.” If others could veto or review executive action, only paralysis would follow. Constraining a single executive “might impede or frustrate the most important measures of the government, in the most critical emergencies of the state,” cautioned Hamilton.
For 235 years, American political leaders heeded Hamilton’s warning. They understood that the benefits of executive independence outweigh the need to enforce the criminal law against presidents. They knew that political stability precluded the use of prosecution to settle scores with partisan rivals. They appreciated that presidents should spend their time in office leading the American people into a better future rather than relitigating the past. This was no principle enforced by the courts or mandated by legislatures; it instead found expression in the wisdom of presidents, attorneys general, and prosecutors.
Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you. In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents. A Republican DA will have to charge Hunter Biden for fraud or corruption for taking money from foreign governments. Another Republican DA will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad. Only retaliation in kind can produce the deterrence necessary to enforce a political version of mutual assured destruction; without the threat of prosecution of their own leaders, Democrats will continue to charge future Republican presidents without restraint.
Tit for tat will produce benefits beyond shoring up executive independence. While pursuing their political self-interest, Republicans will generate the greater social benefit of repairing the rule of law. Whether it results in a conviction or acquittal, the Trump trial underscores a fact not often appreciated by the public. The rule of law — in this case, the idea that like cases should be treated alike — depends today on executive leaders as much as it does on the courts. It is the executive branch of the federal government, headed by an elected president, that bears the responsibility to “take care that the laws are faithfully executed.” It is the attorneys general of the states and the elected district attorneys of cities and counties that hold the power of law enforcement. The executive branch of the federal and state governments decides whom to investigate and prosecute long before a judge ever sees the case.
As Robert Jackson, Franklin D. Roosevelt’s attorney general and later Supreme Court justice declared in a speech that is still considered the greatest statement of prosecutorial ethics, “the prosecutor has more control over life, liberty, and reputation than any other person in America.” He or she enjoys the unchecked discretion simply to have someone investigated, which can ruin one’s reputation and destroy one’s finances. A prosecutor can present one-sided evidence to a grand jury, win an indictment, and have someone held for trial. Under the principle of prosecutorial discretion, courts do not review a prosecutor’s choice of a particular suspect for investigation or deliberate whether the government could have spent its time and resources on more deserving targets.
The American system has no effective check on prosecutors other than their own sense of professional ethics and perhaps the threat of rejection by the voters. Therefore, a prosecutor must choose cases “in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson argued. The last thing he should do is “pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” The rule of law is undermined if prosecution becomes a tool for the government to use for political purposes. It is in such cases, “in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies,” Jackson declared.
In bringing a series of deeply flawed cases against Trump, both federal and local prosecutors have violated Jackson’s principles. They have targeted an unpopular figure first and looked for the crime second. “Show me the man, and I’ll show you the crime,” Stalin’s secret-police chief Lavrentiy Beria reportedly said. Left uncorrected, the Trump trials will only encourage prosecutors throughout the criminal-justice system to persecute public enemies, real and imagined, rather than choose suspects based on the most harmful crimes committed. Leaders of both parties once exercised the statesmanship, or at least showed the good judgment, necessary to restrain prosecutors from charging past presidents. This quality is now all too rare, if not utterly absent, in the Biden administration, which could have not only left the Trump question to the ballot box but also persuaded Bragg and Georgia’s Fulton County DA Fani Willis to stand down. Instead, we must rely on Republicans to threaten an escalation of banana-republic politics in order to prevent actually becoming a banana republic.
John You us the Heller Professor of Law at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institute.
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Last Updated on June 6, 2024 by Real KBrett