Agreed, but if a number of different criminal and civil charges are brought against him (assuming that the prosecutors/plaintiffs are doing their jobs and only bringing charges that they are close to 100% confident that they can win), I assume some charges might be successful. I dread the very idea that he could be pardoned if he ever got a conviction and prison time.
Not just Democrats who want Trump to be held accountable, many current and former Republicans and Independents who also think Trump should be held to account.
I have discussed this with other lawyer friends. We wonder if you could really get a jury that doesn't have at least one diehard Trump supporter that would refuse to find him guilty.
You are correct; this is what the "voir dire" process is for. Jurors fill out questionnaires and answer questions, from the lawyers or judge or both, about possible biases.
(But some might argue that in a case as charged as a prosecution of Trump, people on both sides—rabid supporters and rabid opponents—might lie during voir dire to make it onto the jury.)
I'd be willing to bet that a diehard Trumper would not be above lying in order to get on that jury and acquit him. Ditto for someone who hates him and would lie to get on there and convict him.
Either way, the verdict would be tainted (and again, I believe that he should be charged criminally).
That’s a totalitarian move. Ever heard of this thing where all citizens, even ones whose opinions you don’t like, are allowed to participate in the judicial system on an equal basis?
I write this having spent most of my career as an AUSA under administrations of both parties. I was also a political appointee in the DEA under George W. Bush and in White House Counsel's Office for his father, George H. W. Bush. I'm presently an adjunct professor at Georgetown Law.
Initially, as is often true in law, the lead question (and frequently the most important), is: Who gets to decide whether Trump should be indicted? Ordinarily, of course, Justice Department lawyers — line attorneys and their supervisors — decide whether a federal prosecution will be brought. That would not be the case here. Merrick Garland would have the most important voice, although I suspect that in a case with this much legal and political significance, the matter would be run by President Biden (as one of my cases, US v. Dickerson, was run by President Clinton).
In this extremely unusual circumstance, however, neither Garland nor Biden should decide. Instead, the Department should appoint a Special Prosecutor, as Bob Mueller was appointed for the “Russiagate” probe.
The typical reason we have Special Prosecutors is to avoid the appearance that the political fix is in when the AG is “investigating” his boss. The present circumstance is a mirror image: The country needs to avoid the appearance that the political fix is in when DOJ is investigating its widely despised political arch enemy — the nominal leader of the out party and a strong potential candidate to run for President in the next election. To say that the potential for bias reeks in such a case is a considerable understatement. Even a perfectly viable set of charges brought by DOJ would inescapably bear the aroma of a political vendetta.
The hallmark of an independent judicial system, if not a free country altogether, is the separation of law from retail politics. I do not see how that separation could be maintained without the appointment of someone outside the present Justice Department.
This is not the place to go into detail about who the Special Prosecutor should be, but some criteria for his selection are easy to see: A person of widely agreed-upon integrity with a strong background in federal criminal law; a person above and outside of politics; and a person without a record of hostility toward (or strong affinity for) Donald Trump. The name that comes most readily to mind is former AG Michael Mukasey (who is also a former US district judge). One thing that would be helpful to Mukasey’s appointment is that he was recommended to Pres. George W. Bush for the Attorney General post by none other than Chuck Schumer.
The second thing we must bear in mind is the rigorous standard a federal prosecution must meet. Although I was considered a hardliner in my time as an Assistant US Attorney, I remembered every day I came to work that you can go a long way toward ruining someone’s life just by indicting him.
The standard for bringing an indictment is and ought to be strict. It is not that the prosecutor views the potential defendant as a Bad Man. It’s likewise immaterial that the prospective defendant is vulgar, classless, mean-spirited, juvenile and narcissistic. That’s all fine for gossip and the pages of the New York Times, etc., but has zip to do with the proper exercise of the awesome power to start a citizen of the United States on the road to prison.
Instead, in order to bring an indictment, the prosecutor must have an objectively reasonable, good faith belief that a fairly selected jury could find every element of the charged offense beyond a reasonable doubt by legally acquired, admissible evidence.
That is the highest standard known to the law. Maintaining it, even in cases of the most disgusting and despised defendant — indeed, especially in such cases — is a big part of why we are still a free people.
Which brings me to my last point. The obvious risk in a Donald Trump prosecution is sliding toward a banana republic, nail-your-enemies style of “justice.” But there is a related risk, one that has been hyped by many of my libertarian friends, but whose dangers now become more apparent.
That risk is what I’ll call jury nullification in reverse. The theory of jury nullification as ordinarily stated is that juries should (and some say, do) have the authority effectively to nullify an unjust law or an overbearing prosecution by acquitting the defendant even though the evidence proves him guilty beyond a reasonable doubt. The law’s sometimes being an ass (so the thinking goes), juries should have the power to abate its worst effects by “doing the right thing” regardless of what the formalities of law require.
What advocates of jury nullification miss, among other things, is that the theory of “doing the right thing” regardless of law can work in both directions — a fact that would be very much in the background if a Trump prosecution were to be brought in its most likely venue, the very blue District of Columbia. In particular: Suppose a DC jury were to believe that the prosecution, though serious and credible, had come up a bit short in meeting the beyond-a-reasonable-doubt standard, but that Trump (a “white supremacist,” we are often told) was up to his ears in corrosive, reckless and irresponsible behavior; that the country had a right to expect better; that he’s had it coming for years anyway; so “the right thing to do” is to return a guilty verdict notwithstanding a hole or two in the prosecution’s case. Because, you see, a Bad Man should be held to account, and if this is the best we can do, well………
That would be bad enough for a jury. It would be worse still, and more ominous by far, if Justice Department lawyers and/or their politically-appointed superiors launched anything but an airtight prosecution hoping that a left-leaning jury would fill in the blanks. And that, as much as anything else, is why we need an independent Special Prosecutor if a Trump indictment is to go forward at all.
Thanks, David. The only problem with having Zach in class was that it became obvious right quick that he was smarter than I am and knew more as well. Still, I tried to fake it for a whole semester, and he was quite polite about my relative ignorance.
Interesting post. Not sure I agree with all of it, but it’s certainly thoughtful and sober. I realize you’re saying that *like* Mukasey should be the special counsel and not necessarily Mukasey himself, but didn’t Mukasey represent Trump for a period of time?
I presume you've read Harvey Silverglate's "Three Felonies a Day". What was your reaction? Did he overstate his case? Were the examples he cited aberrations?
How out of bounds would most prosecutors see it if a prosecutor were to apply some novel interpretation of existing laws to prosecute Trump and his associates?
Thank you! Harvey is a charming, friendly guy and like many defense lawyers, prone to overstatement, which "Three Felonies" is in my view. His examples are nothing like what you see day-to-day in federal criminal court.
For a prosecution as divisive and politically fraught as Trump's would be, it would be best to stay away from any novel theory and stick with tried-and-true stuff.
Very out of bounds. That is, if you believe in justice and not just getting at your opponent by any means at hand. Again, I’d real like to know what is do dangerous about Trump that he warrants undermining the entire western tradition of equality before the law?
So you need a special prosecutor to “fill in the blanks” because it can’t be done through normal investigative processes? Um, I think mueller already tried to fill in some blanks. Maybe the problem is that there are some blanks here. Where is the crime?
I think making out a case based on his actions on January 6 is difficult. But the election interference in Georgia seems like a straightforward case that can and should be prosecuted. If anyone but the president had done it, they would already be indicted.
What would be the charge? What state or federal law is violated?
I'm not saying you're wrong, but I'm not a lawyer. If I called my state's Secretary of the State and asked her to "fix" the election count so my preferred candidate won, would that be a violation of the law?
Yes. You don’t decide the outcome and then decide how to achieve it if you are committed to rule by the people. Sure looks like a lot of people here are only down with rule by certain people, namely themselves.
BS. There has been similar complaints by Dems that elections were stolen. When will we get a verifiable vote so the actual people can decide who they want? Judging by some of the comments here, lots of you are willing to apply a different standard to Trump than anyone else. That’s the real rot at the heart of our system. People who bleat about democracy are perfectly willing to put their thumb on the scale to prevent a “dangerous” opponent from getting into office.
I hate Trump but a prosecution of him by a democratic administration would be seen by many as politically motivated. It plays right into his hands and seems likely to strengthen, not weaken, his re-election campaign. I don't think there's enough upside in a prosecution to balance the very significant costs and risks involved. The harshest punishment we can inflict on Trump is to ignore him (and we should).
It’s sad that you hate Trump. It’s certainly legitimate to disagree with what he says or does, but hate? Or is that a virtue signal to show you’re on the “right” side?
I am not a lawyer. It seems to me that anyone who tries to subvert the results of an election through intimidation, threat of force, or legal chicanery should be prosecuted in front of the entire public and shown for the threat that he is. So - prosecute him!
On the other hand, I am (still) not a lawyer, but it seems to me that prosecution would require violation of a criminal statute, and I haven't heard what specific criminal violations would be alleged. The Electoral Count Act is a statute, but has no criminal penalties, as far as I know. Not to minimize Trump's actions, there are many federal statutes that are routinely violated by federal officials.
Pressuring a state official to use his position to change the results of an election should disqualify anyone from a position of trust. But, is there a criminal law involved? I haven't heard an allegation of bribery or extortion. I don't think you can call it conspiracy if there was only one party to the conspiracy.
What exactly would be the criminal violation? If there is a clear answer, prosecute him! But, don't bend the law to get him.
There are certainly legitimate channels to raise legitimate questions about the conduct of the election and the integrity of the counting, and Trump used those channels. He lost them all, but that doesn't make his use of them illegitimate.
However, openly calling on the Vice President to reject the duly certified votes transmitted to Congress to officially record the election results is pretty close to trying to overturn the election (he could always claim he was just posturing, and didn't want anyone to do anything wrong). But, there are a lot of people, in late 2020 as well as the January 6 hearings, who said that it was a genuine attempt to find some colorable (though clearly not viable) argument for throwing out the electoral votes. That really is trying to overturn the election. That's really not a stretch. It's reprehensible, and shows Trump is utterly unworthy of any position of trust. I'm still not sure it's a criminal act.
He didn’t lose them all. The fight was never joined. No court of law looked at all. the shenanigans that went on. I fair proceeding with evidence and arguments presented by both sides didn’t happen. I sincerely doubt any of the TDS sufferers here would feel the same way if the shoe were on the other foot. In fact, in 3016 there were several unsuccessful efforts to overturn that election. (Look it up.) should those people be prosecuted?
I'm trusting that you're arguing in good faith, so here's the information I gathered with a quick check of Google:
The Republican electoral candidates in Georgia filed a suit (Pearson et al v. Kemp et al), which was dismissed in Federal district court.
The Republican electoral candidates in Michigan filed a suit (King et al v. Whitmer et al), seeking an emergency injunction, which was denied in Federal district court.
The Republican electoral candidates, plus 3 other Republican party officials, filed a suit (Bowyer et al v. Ducey et al), which was dismissed in Federal district court.
The Trump campaign organization filed a suit (Donald J. Trump for President, Inc. v. Commonwealth of Pennsylvania et al), attempting to overturn state court decisions, which was dismissed in Federal district court and confirmed in Federal appeals court.
There were other suits in state courts in Arizona, Michigan, Nevada, and Wisconsin.
In all of these cases, Trump and his supporters were able to provide any evidence and arguments they had, but they had little substantiation to support very serious allegations.
As I said, these legal motions are not criminal offenses, and there's no basis to prosecute Trump or anyone else for them. Except maybe the attorneys if they brought the suits in bad faith.
But, the fact that Trump and his supporters would file such frivolous suits to overturn the election results makes him (in my opinion) unfit for any office.
In November 2020, Trump tweeted that “millions” of votes had been “altered.” That was a claim of a material fact. He’s never offered any evidence for it nor apologized for making a false claim.
My liberal friends are gun-ho about prosecution. I myself support prosecution only on the condition that there is political/social consensus. I’d like to think there is sufficient consensus but I fear that my partisanship colors my opinion.
The tit for tat across presidential administrations is a real risk. We already see that with impeachments (congress members initiated a vote to start impeachment proceedings). If Latin America is any indication, it is that once we embark on a polarized, tit for tat equilibrium, it will be hard to unravel.
I really wish there was consensus and it disappoints me greatly that polarization colors people’s sense of Trump’s culpability. Patriotism is so thoroughly dead.
There isn’t anything like a consensus to prosecute Trump. In fact it’s the opposite. In fact, the 2020 election only showed that the voting system is thoroughly corrupt. It disappoints me greatly that blue church folks blithely dismiss any signs of malfeasance from their own, but assume that Trump did something criminal. For years Trump has been in the crosshairs. Don’t you people ever wonder why? Or should mean tweets and a bombastic personality be criminalized? What you people don’t seem to understand is that whatever trump did, the ruling class you support is at least as bad as Trump. If trump should be prosecuted, so should they all. I could list numerous cases of Dem malfeasance at least as bad as anything trump did. Equality under the law must be a principle we all stand for or we are truly doomed. It’s not about trump at all in the end.
Trump shouldn’t be prosecuted under US federal law unless (1) he can be charged with a clear violation of a criminal statute. Stretching the law is a big no-no, a violation of norms as bad as Trump’s acts. And (2) there is overwhelming evidence supporting each element of the offense (“smoking gun” quality evidence).
The people who have been charged to date with obstructing Congress all used or conspired to use or encouraged others to use force and violence. Such evidence is lacking with respect to Trump. I don’t think the obstruction statute should be stretched to include non-violent acts.
The “defrauding” the government theory has two problems. One, it’s hopelessly vague. What are its elements? No one can say. Just lying can’t be a crime-presidents lie all the time in an attempt to influence the public or Congress. Second, I don’t think that the crime of defrauding the government should be interpreted as an all purpose crime for any bad act. It reaches attempts to defraud the government of money, of resources, of assets. That’s not the case here.
I don’t have an opinion on whether Trump violated or should be prosecuted for violating Georgia law.
Yah think there should be a provable violation of the law? You obviously don’t understand how Trump poses a danger to “our democracy” aka the current ruling class.
Because Nixon resigned and couldn't do any more damage. Biden could pardon him in exchange for him never running for any office again, but he'd need to get all of the state prosecutors on board too since pardons only extend to federal crimes.
Yes. If this were normal times, we’d have all moved on eons ago. This goes way beyond not liking Trump. The current ruling class feels threatened by him because he’s not one of theirs. It amuses me to see all the people who adopt ruling class attitudes as of they belong.
As https://theunpopulist.substack.com/p/the-jan-6-committees-findings-have mentions, Nixon accepted punishment and was humbled, maybe even repentant, over it. If Trump would just admit what he'd done was wrong, I would be significantly more open to "moving on". Even with him being pardoned, if necessary. (And similar being the case as to various potential state prosecutions, which probably make it impossible to negotiate some grand bargain even if Trump were receptive to receiving one.)
But just as Trump has clearly not "moved on" -- and maybe worse, his hordes of imitators and sycophants have not, and are breaking further, unholier ground -- neither can the rest of us yet fully move on.
"Democracy" is our system. Trump rejected it in inventing or of whole cloth a fraudulent election claim. Democracy is not perfect - it delivered us Trump in 2016 when basically any other Republican at all would have been better for everyone. And it may provide him an opportunity he does not deserve to try again in 2024, because Republicans were feckless in failing to convict him after impeachment. (Don't for a second claim that impeachment is a betrayal of democracy. Elections are good, but there remains a necessity for a feedback mechanism that works faster than the electoral cycle. Trump deserved it - both times. In the second case, at absolute minimum for failing to lift a finger to try to stop the riot.) But it is a stable equilibrium for determining things.
Note that among those hordes are a bunch of Republican candidates who are claiming they didn't lose primary elections they actually lost. If you're going to cry crocodile tears over democracy, decry these people for abusing it.
No prosecution. Any "evidence" that was gathered by this political theater is tainted by a total lack of transparency in the process and a utter lack of proper evidence-gathering precedent. There have been few "bombshells" that would be considered admissible out-side a DC grand jury (which we all know leans a bit to the left). The committee has done it's job in getting salacious stories to the public without ever having to factually back up the claims, a lot like the trial by public of the Russian Dossier or Alfabank (Clinesmith is back to practicing law).
All this has done has been to keep Trump's name in the headlines and further balkanize the nation. Two-tiered justice. One has to only look at the complete disregard of Hunter's felonies and President Biden's tacit and active acceptance of them, the FBI plot to frame idiots to kidnap Whitmer, and the presence of FBI agents at J6 and magically-opening magnetically-locked doors to see a worrying pattern. Additionally, probably not related, why does Trump, if he wants to overthrow the Congress, attempt to activate 10k national guard to DC before J6, only to have Bowser and Pelosi decline? Seems like a set up.
Selective enforcement of the law creates an authoritarian regime. Pair that with the attempt to erase our history (the good and the bad), and the view that there is no objective truth, and you have the beginnings of a nice little Bolshevik revolution.
Trump has made heretofore intelligent people into pearl-clutching, hyperbolic lunatics. I don't really like Trump or a lot of his rhetoric (other that some objectively funny statements), but I respect the fact that he has highlighted how deeply broken and corrupted the system is and that is probably the one this that all of us can agree on.
Do you believe the audio of Trump's Georgia phone call pressuring Georgia election officials to "find" him the votes to win was insufficiently clear and transparent?
The case for January 6 is certainly muddy, in part because the legal standards are high, in part because the best case for or against requires confidence in Trump's internal thinking. The case that in that Georgia phone call Trump solicited Georgia officials to tamper with the vote counts to get him elected -- "I just need [by purest coincidence, exactly one vote more than I lost by]" -- is pretty clear.
No. Quote the actual source, which means read the transcript. Seems to show a person asking another official to do his job with firmly-believed interjections.
"So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break. You know, we have that in spades already. Or we can keep it going, but that’s not fair to the voters of Georgia because they’re going to see what happened, and they’re going to see what happened. I mean, I’ll, I’ll take on anybody you want with regard to [name] and her lovely daughter, a very lovely young lady, I’m sure. But, but [name] . . . I will take on anybody you want. And the minimum, there were 18,000 ballots, but they used them three times. So that’s, you know, a lot of votes. And they were all to Biden, by the way, that’s the other thing we didn’t say. You know, [name] , the one thing I forgot to say, which was the most important. You know that every single ballot she did went to Biden. You know that, right? Do you know that, by the way, Brad?"
"Trump: No, we do have a way, but I don’t want to get into it. We found a way . . . excuse me, but we don’t need it because we’re only down 11,000 votes, so we don’t even need it. I personally think they’re corrupt as hell. But we don’t need that. All we have to do, Cleta, is find 11,000-plus votes. So we don’t need that. I’m not looking to shake up the whole world. We won Georgia easily. We won it by hundreds of thousands of votes. But if you go by basic, simple numbers, we won it easily, easily. So we’re not giving Dominion a pass on the record. We don’t need Dominion because we have so many other votes that we don’t need to prove it any more than we already have."
Trump did nothing wrong in challenging the Certification of Electoral Votes through legal
process and grounds, as John Adams and Thomas Jefferson did successfully, and as Jamie Raskin, a Member of the 1/6 Committee, did unsuccessfully, in the past.
The ability to challenge is a safeguard of the System, without which the Electoral process is defenseless against fraud, corruption, and Abuse of Process.
Putting aside, the charges of Voter Fraud, and only consider the Charges of Abuse of Process in the State Certifications.
It is established, by Court proceedings(Pa., MI) and by admitted facts(Ga.), that in the 2020 Election a number of the States certified election results that were conducted contrary to the Rules set by the State Legislatures, which, under the Constitution, have the sole authority to set them.
These clearly are grounds for the decertification of the Electoral Votes involved.
Image that Trump had manipulated the Certification of Electoral Votes contrary to the Rules set by a Legislature, would it be a crime if his opponents challenged the Certification? Would those who now are howling for the prosecution of Trump for a Crime do the same regarding the challengers in such instance?
Of course not.
This whole effort is a continuation of the previously discredited efforts(the Russiagate Fraud, two
absurd and failed Impeachments) by the very same Miscreants to destroy Trump politically and personally.
As despicable and dishonest as there efforts certainly are, their poisoning of our Elections and the
sowing of civil discourse for political gain is unforgivable
It is the frivolous abuse of serious Constitutional safeguards in the conduct of a political vendetta against a political opponent that is a Crime, moral, if not legal.
1. Seriously, they want to prosecute Trump for questioning Election results?
2. Name one think current DOJ did to restore independence and integrity to DOJ? Perhaps handling of Hunter Biden "activities" is an example of restoration efforts? Garland is a crook.
I think it’s abundantly clear that trump is being held to a standard that literally no other politician has ever had to face. There is literally nothing in his four year record as president to account for the attempts to take him out. Dangerous? How? What’s much more dangerous is that the entire national security state can manufacture evidence against him without any consequences whatsoever. I’m sick of the pretense that somehow what trump did was any worse than dozens and dozens of others in government has done. It’s almost as if when it comes to trump, the ability to be impartial is impossible. The fear is always ramped up to eleven. Seriously, why? The answer is always something vague like saving democracy. Let’s face it, there’s no real argument here. It’s confirmation bias all the way down because the embedded assumption is that trump is somehow worse than say, GWB. Or Clinton. Or Obama. Or Nixon. By any objective measure, he’s not. It’s gonna take someone who isn’t alive today to get at the truth of this because so many have been infected by TDS.
Because criminal prosecution could be foiled by a single juror voting "not guilty" — and the horrific political consequences of a failed prosecution — I believe that there should be no prosecution unless the evidence/proof of Trump's commission of a crime is overwhelming. There is certainly damning evidence. But, thus far, I have not seen overwhelming evidence of Trump's guilt.
What are those horrific political consequences? That the glorious Biden utopia will end? That Hunter Biden will have to stop getting paid by foreign powers and have to go back to his whores and his crack?
In the words of Omar Little of The Wire, If you come at the king, you best not miss.
Convicting Trump might be a blessing. His acquittal would be a catastrophe. He should only be indicted if the case is a slam dunk.
Even a mistrial would be a disaster.
Agreed, but if a number of different criminal and civil charges are brought against him (assuming that the prosecutors/plaintiffs are doing their jobs and only bringing charges that they are close to 100% confident that they can win), I assume some charges might be successful. I dread the very idea that he could be pardoned if he ever got a conviction and prison time.
Trump could run from prison and potentially win. Then he could pardon himself.
The Democrats should stop looking for a deus ex machina to save them from Trump. There’s no such thing.
Not just Democrats who want Trump to be held accountable, many current and former Republicans and Independents who also think Trump should be held to account.
Sure, but I don't think he could win running a campaign from prison. I would hope Republicans wouldn't go that low, but who knows.
I have discussed this with other lawyer friends. We wonder if you could really get a jury that doesn't have at least one diehard Trump supporter that would refuse to find him guilty.
I'm not an attorney, but wouldn't there be some way to keep rabid supporters and opponents off a jury?
You are correct; this is what the "voir dire" process is for. Jurors fill out questionnaires and answer questions, from the lawyers or judge or both, about possible biases.
(But some might argue that in a case as charged as a prosecution of Trump, people on both sides—rabid supporters and rabid opponents—might lie during voir dire to make it onto the jury.)
I'd be willing to bet that a diehard Trumper would not be above lying in order to get on that jury and acquit him. Ditto for someone who hates him and would lie to get on there and convict him.
Either way, the verdict would be tainted (and again, I believe that he should be charged criminally).
That’s a totalitarian move. Ever heard of this thing where all citizens, even ones whose opinions you don’t like, are allowed to participate in the judicial system on an equal basis?
Already came after him and missed. And missed again and missed again. Payback could be a bitch.
I write this having spent most of my career as an AUSA under administrations of both parties. I was also a political appointee in the DEA under George W. Bush and in White House Counsel's Office for his father, George H. W. Bush. I'm presently an adjunct professor at Georgetown Law.
Initially, as is often true in law, the lead question (and frequently the most important), is: Who gets to decide whether Trump should be indicted? Ordinarily, of course, Justice Department lawyers — line attorneys and their supervisors — decide whether a federal prosecution will be brought. That would not be the case here. Merrick Garland would have the most important voice, although I suspect that in a case with this much legal and political significance, the matter would be run by President Biden (as one of my cases, US v. Dickerson, was run by President Clinton).
In this extremely unusual circumstance, however, neither Garland nor Biden should decide. Instead, the Department should appoint a Special Prosecutor, as Bob Mueller was appointed for the “Russiagate” probe.
The typical reason we have Special Prosecutors is to avoid the appearance that the political fix is in when the AG is “investigating” his boss. The present circumstance is a mirror image: The country needs to avoid the appearance that the political fix is in when DOJ is investigating its widely despised political arch enemy — the nominal leader of the out party and a strong potential candidate to run for President in the next election. To say that the potential for bias reeks in such a case is a considerable understatement. Even a perfectly viable set of charges brought by DOJ would inescapably bear the aroma of a political vendetta.
The hallmark of an independent judicial system, if not a free country altogether, is the separation of law from retail politics. I do not see how that separation could be maintained without the appointment of someone outside the present Justice Department.
This is not the place to go into detail about who the Special Prosecutor should be, but some criteria for his selection are easy to see: A person of widely agreed-upon integrity with a strong background in federal criminal law; a person above and outside of politics; and a person without a record of hostility toward (or strong affinity for) Donald Trump. The name that comes most readily to mind is former AG Michael Mukasey (who is also a former US district judge). One thing that would be helpful to Mukasey’s appointment is that he was recommended to Pres. George W. Bush for the Attorney General post by none other than Chuck Schumer.
The second thing we must bear in mind is the rigorous standard a federal prosecution must meet. Although I was considered a hardliner in my time as an Assistant US Attorney, I remembered every day I came to work that you can go a long way toward ruining someone’s life just by indicting him.
The standard for bringing an indictment is and ought to be strict. It is not that the prosecutor views the potential defendant as a Bad Man. It’s likewise immaterial that the prospective defendant is vulgar, classless, mean-spirited, juvenile and narcissistic. That’s all fine for gossip and the pages of the New York Times, etc., but has zip to do with the proper exercise of the awesome power to start a citizen of the United States on the road to prison.
Instead, in order to bring an indictment, the prosecutor must have an objectively reasonable, good faith belief that a fairly selected jury could find every element of the charged offense beyond a reasonable doubt by legally acquired, admissible evidence.
That is the highest standard known to the law. Maintaining it, even in cases of the most disgusting and despised defendant — indeed, especially in such cases — is a big part of why we are still a free people.
Which brings me to my last point. The obvious risk in a Donald Trump prosecution is sliding toward a banana republic, nail-your-enemies style of “justice.” But there is a related risk, one that has been hyped by many of my libertarian friends, but whose dangers now become more apparent.
That risk is what I’ll call jury nullification in reverse. The theory of jury nullification as ordinarily stated is that juries should (and some say, do) have the authority effectively to nullify an unjust law or an overbearing prosecution by acquitting the defendant even though the evidence proves him guilty beyond a reasonable doubt. The law’s sometimes being an ass (so the thinking goes), juries should have the power to abate its worst effects by “doing the right thing” regardless of what the formalities of law require.
What advocates of jury nullification miss, among other things, is that the theory of “doing the right thing” regardless of law can work in both directions — a fact that would be very much in the background if a Trump prosecution were to be brought in its most likely venue, the very blue District of Columbia. In particular: Suppose a DC jury were to believe that the prosecution, though serious and credible, had come up a bit short in meeting the beyond-a-reasonable-doubt standard, but that Trump (a “white supremacist,” we are often told) was up to his ears in corrosive, reckless and irresponsible behavior; that the country had a right to expect better; that he’s had it coming for years anyway; so “the right thing to do” is to return a guilty verdict notwithstanding a hole or two in the prosecution’s case. Because, you see, a Bad Man should be held to account, and if this is the best we can do, well………
That would be bad enough for a jury. It would be worse still, and more ominous by far, if Justice Department lawyers and/or their politically-appointed superiors launched anything but an airtight prosecution hoping that a left-leaning jury would fill in the blanks. And that, as much as anything else, is why we need an independent Special Prosecutor if a Trump indictment is to go forward at all.
(My comment here is adapted from my recent Substack post: https://ringsideatthereckoning.substack.com/p/should-trump-be-federally-prosecuted)
Thanks for this comprehensive and clear-eyed commentary, Bill! (And Zach sends his regards.)
Thanks, David. The only problem with having Zach in class was that it became obvious right quick that he was smarter than I am and knew more as well. Still, I tried to fake it for a whole semester, and he was quite polite about my relative ignorance.
Interesting post. Not sure I agree with all of it, but it’s certainly thoughtful and sober. I realize you’re saying that *like* Mukasey should be the special counsel and not necessarily Mukasey himself, but didn’t Mukasey represent Trump for a period of time?
I think Mukasey has spoken favorably of Trump but I don't believe he has represented Trump.
Ah, a quick google search tells me that Marc—not Mike—Mukasey has represented the Trump Organization.
I applaud your presentation of the issues.
I presume you've read Harvey Silverglate's "Three Felonies a Day". What was your reaction? Did he overstate his case? Were the examples he cited aberrations?
How out of bounds would most prosecutors see it if a prosecutor were to apply some novel interpretation of existing laws to prosecute Trump and his associates?
Thank you! Harvey is a charming, friendly guy and like many defense lawyers, prone to overstatement, which "Three Felonies" is in my view. His examples are nothing like what you see day-to-day in federal criminal court.
For a prosecution as divisive and politically fraught as Trump's would be, it would be best to stay away from any novel theory and stick with tried-and-true stuff.
Very out of bounds. That is, if you believe in justice and not just getting at your opponent by any means at hand. Again, I’d real like to know what is do dangerous about Trump that he warrants undermining the entire western tradition of equality before the law?
So you need a special prosecutor to “fill in the blanks” because it can’t be done through normal investigative processes? Um, I think mueller already tried to fill in some blanks. Maybe the problem is that there are some blanks here. Where is the crime?
I think making out a case based on his actions on January 6 is difficult. But the election interference in Georgia seems like a straightforward case that can and should be prosecuted. If anyone but the president had done it, they would already be indicted.
What would be the charge? What state or federal law is violated?
I'm not saying you're wrong, but I'm not a lawyer. If I called my state's Secretary of the State and asked her to "fix" the election count so my preferred candidate won, would that be a violation of the law?
Yes. You don’t decide the outcome and then decide how to achieve it if you are committed to rule by the people. Sure looks like a lot of people here are only down with rule by certain people, namely themselves.
BS. There has been similar complaints by Dems that elections were stolen. When will we get a verifiable vote so the actual people can decide who they want? Judging by some of the comments here, lots of you are willing to apply a different standard to Trump than anyone else. That’s the real rot at the heart of our system. People who bleat about democracy are perfectly willing to put their thumb on the scale to prevent a “dangerous” opponent from getting into office.
I hate Trump but a prosecution of him by a democratic administration would be seen by many as politically motivated. It plays right into his hands and seems likely to strengthen, not weaken, his re-election campaign. I don't think there's enough upside in a prosecution to balance the very significant costs and risks involved. The harshest punishment we can inflict on Trump is to ignore him (and we should).
It’s sad that you hate Trump. It’s certainly legitimate to disagree with what he says or does, but hate? Or is that a virtue signal to show you’re on the “right” side?
I am not a lawyer. It seems to me that anyone who tries to subvert the results of an election through intimidation, threat of force, or legal chicanery should be prosecuted in front of the entire public and shown for the threat that he is. So - prosecute him!
On the other hand, I am (still) not a lawyer, but it seems to me that prosecution would require violation of a criminal statute, and I haven't heard what specific criminal violations would be alleged. The Electoral Count Act is a statute, but has no criminal penalties, as far as I know. Not to minimize Trump's actions, there are many federal statutes that are routinely violated by federal officials.
Pressuring a state official to use his position to change the results of an election should disqualify anyone from a position of trust. But, is there a criminal law involved? I haven't heard an allegation of bribery or extortion. I don't think you can call it conspiracy if there was only one party to the conspiracy.
What exactly would be the criminal violation? If there is a clear answer, prosecute him! But, don't bend the law to get him.
I am a lawyer and you are asking all the right questions.
It’s a stretch to say Trump tried to overturn the election by asking legitimate questions about the integrity of the election. Unless you have TDS
There are certainly legitimate channels to raise legitimate questions about the conduct of the election and the integrity of the counting, and Trump used those channels. He lost them all, but that doesn't make his use of them illegitimate.
However, openly calling on the Vice President to reject the duly certified votes transmitted to Congress to officially record the election results is pretty close to trying to overturn the election (he could always claim he was just posturing, and didn't want anyone to do anything wrong). But, there are a lot of people, in late 2020 as well as the January 6 hearings, who said that it was a genuine attempt to find some colorable (though clearly not viable) argument for throwing out the electoral votes. That really is trying to overturn the election. That's really not a stretch. It's reprehensible, and shows Trump is utterly unworthy of any position of trust. I'm still not sure it's a criminal act.
He didn’t lose them all. The fight was never joined. No court of law looked at all. the shenanigans that went on. I fair proceeding with evidence and arguments presented by both sides didn’t happen. I sincerely doubt any of the TDS sufferers here would feel the same way if the shoe were on the other foot. In fact, in 3016 there were several unsuccessful efforts to overturn that election. (Look it up.) should those people be prosecuted?
I'm trusting that you're arguing in good faith, so here's the information I gathered with a quick check of Google:
The Republican electoral candidates in Georgia filed a suit (Pearson et al v. Kemp et al), which was dismissed in Federal district court.
The Republican electoral candidates in Michigan filed a suit (King et al v. Whitmer et al), seeking an emergency injunction, which was denied in Federal district court.
The Republican electoral candidates, plus 3 other Republican party officials, filed a suit (Bowyer et al v. Ducey et al), which was dismissed in Federal district court.
The Trump campaign organization filed a suit (Donald J. Trump for President, Inc. v. Commonwealth of Pennsylvania et al), attempting to overturn state court decisions, which was dismissed in Federal district court and confirmed in Federal appeals court.
There were other suits in state courts in Arizona, Michigan, Nevada, and Wisconsin.
In all of these cases, Trump and his supporters were able to provide any evidence and arguments they had, but they had little substantiation to support very serious allegations.
As I said, these legal motions are not criminal offenses, and there's no basis to prosecute Trump or anyone else for them. Except maybe the attorneys if they brought the suits in bad faith.
But, the fact that Trump and his supporters would file such frivolous suits to overturn the election results makes him (in my opinion) unfit for any office.
In November 2020, Trump tweeted that “millions” of votes had been “altered.” That was a claim of a material fact. He’s never offered any evidence for it nor apologized for making a false claim.
My liberal friends are gun-ho about prosecution. I myself support prosecution only on the condition that there is political/social consensus. I’d like to think there is sufficient consensus but I fear that my partisanship colors my opinion.
The tit for tat across presidential administrations is a real risk. We already see that with impeachments (congress members initiated a vote to start impeachment proceedings). If Latin America is any indication, it is that once we embark on a polarized, tit for tat equilibrium, it will be hard to unravel.
I really wish there was consensus and it disappoints me greatly that polarization colors people’s sense of Trump’s culpability. Patriotism is so thoroughly dead.
Nah patriotism comes in different flavors brah
There isn’t anything like a consensus to prosecute Trump. In fact it’s the opposite. In fact, the 2020 election only showed that the voting system is thoroughly corrupt. It disappoints me greatly that blue church folks blithely dismiss any signs of malfeasance from their own, but assume that Trump did something criminal. For years Trump has been in the crosshairs. Don’t you people ever wonder why? Or should mean tweets and a bombastic personality be criminalized? What you people don’t seem to understand is that whatever trump did, the ruling class you support is at least as bad as Trump. If trump should be prosecuted, so should they all. I could list numerous cases of Dem malfeasance at least as bad as anything trump did. Equality under the law must be a principle we all stand for or we are truly doomed. It’s not about trump at all in the end.
Really good thread. Thanks.
How would you find an impartial jury when the case has been so publicized?
Trump shouldn’t be prosecuted under US federal law unless (1) he can be charged with a clear violation of a criminal statute. Stretching the law is a big no-no, a violation of norms as bad as Trump’s acts. And (2) there is overwhelming evidence supporting each element of the offense (“smoking gun” quality evidence).
The people who have been charged to date with obstructing Congress all used or conspired to use or encouraged others to use force and violence. Such evidence is lacking with respect to Trump. I don’t think the obstruction statute should be stretched to include non-violent acts.
The “defrauding” the government theory has two problems. One, it’s hopelessly vague. What are its elements? No one can say. Just lying can’t be a crime-presidents lie all the time in an attempt to influence the public or Congress. Second, I don’t think that the crime of defrauding the government should be interpreted as an all purpose crime for any bad act. It reaches attempts to defraud the government of money, of resources, of assets. That’s not the case here.
I don’t have an opinion on whether Trump violated or should be prosecuted for violating Georgia law.
Yah think there should be a provable violation of the law? You obviously don’t understand how Trump poses a danger to “our democracy” aka the current ruling class.
For the larger good of the country, the “nays” have the better of the argument.
“For the good of the country” Those great unwashed that voted for trump sure don’t know what’s good for them.
Why is this not like a Nixon/Ford situation? Trump is awful, but isn't it time to move on?
Because Nixon resigned and couldn't do any more damage. Biden could pardon him in exchange for him never running for any office again, but he'd need to get all of the state prosecutors on board too since pardons only extend to federal crimes.
Yes. If this were normal times, we’d have all moved on eons ago. This goes way beyond not liking Trump. The current ruling class feels threatened by him because he’s not one of theirs. It amuses me to see all the people who adopt ruling class attitudes as of they belong.
Who says that was the right outcome?
As https://theunpopulist.substack.com/p/the-jan-6-committees-findings-have mentions, Nixon accepted punishment and was humbled, maybe even repentant, over it. If Trump would just admit what he'd done was wrong, I would be significantly more open to "moving on". Even with him being pardoned, if necessary. (And similar being the case as to various potential state prosecutions, which probably make it impossible to negotiate some grand bargain even if Trump were receptive to receiving one.)
But just as Trump has clearly not "moved on" -- and maybe worse, his hordes of imitators and sycophants have not, and are breaking further, unholier ground -- neither can the rest of us yet fully move on.
Those hordes you speak of. Who are they? Do they deserve to vote for a man you don’t like? Do you support “democracy?”
"Democracy" is our system. Trump rejected it in inventing or of whole cloth a fraudulent election claim. Democracy is not perfect - it delivered us Trump in 2016 when basically any other Republican at all would have been better for everyone. And it may provide him an opportunity he does not deserve to try again in 2024, because Republicans were feckless in failing to convict him after impeachment. (Don't for a second claim that impeachment is a betrayal of democracy. Elections are good, but there remains a necessity for a feedback mechanism that works faster than the electoral cycle. Trump deserved it - both times. In the second case, at absolute minimum for failing to lift a finger to try to stop the riot.) But it is a stable equilibrium for determining things.
Note that among those hordes are a bunch of Republican candidates who are claiming they didn't lose primary elections they actually lost. If you're going to cry crocodile tears over democracy, decry these people for abusing it.
No prosecution. Any "evidence" that was gathered by this political theater is tainted by a total lack of transparency in the process and a utter lack of proper evidence-gathering precedent. There have been few "bombshells" that would be considered admissible out-side a DC grand jury (which we all know leans a bit to the left). The committee has done it's job in getting salacious stories to the public without ever having to factually back up the claims, a lot like the trial by public of the Russian Dossier or Alfabank (Clinesmith is back to practicing law).
All this has done has been to keep Trump's name in the headlines and further balkanize the nation. Two-tiered justice. One has to only look at the complete disregard of Hunter's felonies and President Biden's tacit and active acceptance of them, the FBI plot to frame idiots to kidnap Whitmer, and the presence of FBI agents at J6 and magically-opening magnetically-locked doors to see a worrying pattern. Additionally, probably not related, why does Trump, if he wants to overthrow the Congress, attempt to activate 10k national guard to DC before J6, only to have Bowser and Pelosi decline? Seems like a set up.
Selective enforcement of the law creates an authoritarian regime. Pair that with the attempt to erase our history (the good and the bad), and the view that there is no objective truth, and you have the beginnings of a nice little Bolshevik revolution.
Trump has made heretofore intelligent people into pearl-clutching, hyperbolic lunatics. I don't really like Trump or a lot of his rhetoric (other that some objectively funny statements), but I respect the fact that he has highlighted how deeply broken and corrupted the system is and that is probably the one this that all of us can agree on.
Do you believe the audio of Trump's Georgia phone call pressuring Georgia election officials to "find" him the votes to win was insufficiently clear and transparent?
The case for January 6 is certainly muddy, in part because the legal standards are high, in part because the best case for or against requires confidence in Trump's internal thinking. The case that in that Georgia phone call Trump solicited Georgia officials to tamper with the vote counts to get him elected -- "I just need [by purest coincidence, exactly one vote more than I lost by]" -- is pretty clear.
No. Quote the actual source, which means read the transcript. Seems to show a person asking another official to do his job with firmly-believed interjections.
"So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break. You know, we have that in spades already. Or we can keep it going, but that’s not fair to the voters of Georgia because they’re going to see what happened, and they’re going to see what happened. I mean, I’ll, I’ll take on anybody you want with regard to [name] and her lovely daughter, a very lovely young lady, I’m sure. But, but [name] . . . I will take on anybody you want. And the minimum, there were 18,000 ballots, but they used them three times. So that’s, you know, a lot of votes. And they were all to Biden, by the way, that’s the other thing we didn’t say. You know, [name] , the one thing I forgot to say, which was the most important. You know that every single ballot she did went to Biden. You know that, right? Do you know that, by the way, Brad?"
"Trump: No, we do have a way, but I don’t want to get into it. We found a way . . . excuse me, but we don’t need it because we’re only down 11,000 votes, so we don’t even need it. I personally think they’re corrupt as hell. But we don’t need that. All we have to do, Cleta, is find 11,000-plus votes. So we don’t need that. I’m not looking to shake up the whole world. We won Georgia easily. We won it by hundreds of thousands of votes. But if you go by basic, simple numbers, we won it easily, easily. So we’re not giving Dominion a pass on the record. We don’t need Dominion because we have so many other votes that we don’t need to prove it any more than we already have."
For what?
Trump did nothing wrong in challenging the Certification of Electoral Votes through legal
process and grounds, as John Adams and Thomas Jefferson did successfully, and as Jamie Raskin, a Member of the 1/6 Committee, did unsuccessfully, in the past.
The ability to challenge is a safeguard of the System, without which the Electoral process is defenseless against fraud, corruption, and Abuse of Process.
Putting aside, the charges of Voter Fraud, and only consider the Charges of Abuse of Process in the State Certifications.
It is established, by Court proceedings(Pa., MI) and by admitted facts(Ga.), that in the 2020 Election a number of the States certified election results that were conducted contrary to the Rules set by the State Legislatures, which, under the Constitution, have the sole authority to set them.
These clearly are grounds for the decertification of the Electoral Votes involved.
Image that Trump had manipulated the Certification of Electoral Votes contrary to the Rules set by a Legislature, would it be a crime if his opponents challenged the Certification? Would those who now are howling for the prosecution of Trump for a Crime do the same regarding the challengers in such instance?
Of course not.
This whole effort is a continuation of the previously discredited efforts(the Russiagate Fraud, two
absurd and failed Impeachments) by the very same Miscreants to destroy Trump politically and personally.
As despicable and dishonest as there efforts certainly are, their poisoning of our Elections and the
sowing of civil discourse for political gain is unforgivable
It is the frivolous abuse of serious Constitutional safeguards in the conduct of a political vendetta against a political opponent that is a Crime, moral, if not legal.
Thank you
1. Seriously, they want to prosecute Trump for questioning Election results?
2. Name one think current DOJ did to restore independence and integrity to DOJ? Perhaps handling of Hunter Biden "activities" is an example of restoration efforts? Garland is a crook.
Yep but the fact that Trump is bad is one of the blue church commandments. You must first believe, then you look for evidence
I think it’s abundantly clear that trump is being held to a standard that literally no other politician has ever had to face. There is literally nothing in his four year record as president to account for the attempts to take him out. Dangerous? How? What’s much more dangerous is that the entire national security state can manufacture evidence against him without any consequences whatsoever. I’m sick of the pretense that somehow what trump did was any worse than dozens and dozens of others in government has done. It’s almost as if when it comes to trump, the ability to be impartial is impossible. The fear is always ramped up to eleven. Seriously, why? The answer is always something vague like saving democracy. Let’s face it, there’s no real argument here. It’s confirmation bias all the way down because the embedded assumption is that trump is somehow worse than say, GWB. Or Clinton. Or Obama. Or Nixon. By any objective measure, he’s not. It’s gonna take someone who isn’t alive today to get at the truth of this because so many have been infected by TDS.
Because criminal prosecution could be foiled by a single juror voting "not guilty" — and the horrific political consequences of a failed prosecution — I believe that there should be no prosecution unless the evidence/proof of Trump's commission of a crime is overwhelming. There is certainly damning evidence. But, thus far, I have not seen overwhelming evidence of Trump's guilt.
What are those horrific political consequences? That the glorious Biden utopia will end? That Hunter Biden will have to stop getting paid by foreign powers and have to go back to his whores and his crack?