Notice And Comment: Should Trump Be Indicted?
What's more dangerous—prosecuting the ex-president, or not prosecuting him?
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Now that the House Select Committee to Investigate the January 6th Attack has finished its first season, and with Congress in recess until September, now is a good time to reflect on next steps. Specifically: should former president Donald Trump be criminally prosecuted?1
It’s a leading conversation topic among pundits. It will be a leading conversation topic at your Labor Day barbecues in a few weeks. And it’s the topic I’ve chosen for this latest installment of Notice and Comment (“N&C”), the feature here at Original Jurisdiction in which I tee up a topic and ask readers to discuss in the comments.
I’m guessing most of you already have formed opinions on whether Trump should be indicted. But in case they might be helpful, here are links to three essays by prominent pundits on both sides of the debate. They’ve appeared at different points over the past few weeks, so the writers had different facts available to them, but their general arguments still apply.
Pro-prosecution:
Neal Katyal: “If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.”
Rick Hasen: “What Mr. Trump did in its totality and in many individual instances was criminal. If [Attorney General Merrick] Garland fails to act, it will only embolden Mr. Trump or someone like him to try again if he loses, this time aided by a brainwashed and cowed army of elected and election officials who stand ready to steal the election next time.“
David French: “For law enforcement to indict a former president (and perhaps the frontrunner for the 2024 GOP nomination) would set a grave and potentially dangerous precedent. But there is another precedent that is perhaps more grave and more dangerous—deciding that presidents are held to lower standards of criminal behavior than virtually any other American citizen.”
Anti-prosecution:
Jack Goldsmith: “[P]rosecution would further inflame our already blazing partisan acrimony, consume the rest of Mr. Biden’s term, embolden and possibly politically enhance Mr. Trump, and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department ‘independence and integrity’ even if he prosecutes Mr. Trump in the service of those norms.”
Andrew C. McCarthy: “The past eight years of politically fraught investigations—including criminal and national-security probes of Trump and Hillary Clinton, both major-party presidential nominees—should teach us that the intrusion of prosecutors into electoral politics has a corrupting effect on the democratic process and the Justice Department itself.”
Rich Lowry: “Stretching to find a theory for a violation of the law in Trump’s ‘Stop the Steal’ campaign and using it to pursue a dubious prosecution would further discredit the justice system in the eyes of many Americans, represent a breach of the country’s norms, likely fail on its own terms, and perhaps boost Trump politically.”
In the comments, please opine on whether Trump should be prosecuted. If you’re pro-prosecution, it would be helpful to mention what conduct you’d focus on and what you’d charge Trump with, since there are (sadly) multiple possibilities, helpfully summarized in this New York Times article (although note that we’ve learned quite a bit since that article came out, such as more details about the fake-electors plot).
As usual with N&C posts, comments are open to all readers, not just paid subscribers. I look forward to your vigorous (yet civil) debate.
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I’m setting aside civil proceedings brought by government authorities, such as the ongoing investigation of Trump’s business affairs by New York Attorney General Letitia James.
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)