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.
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.
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).
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.
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.
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.
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.
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.
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.
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)
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.
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).
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.
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.
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.
For the larger good of the country, the “nays” have the better of the argument.
Why is this not like a Nixon/Ford situation? Trump is awful, but isn't it time to move on?
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.
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.
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.