Mutually Assured Prosecution

It’s not like it hasn’t happened before. The Dems blackballed Bork, so the Reps refused to give Merrick Garland a hearing. That there are reasons why these two things are very different isn’t the point. The point is if they do it to us, we’ll do it to them. Is this about to start again on a previously virgin frontier, state prosecutions?

It is far from clear how this case will end. No matter what the precise charges are, the prosecution will raise unusual and arguably novel legal issues. Michael Cohen, who seems to be the key witness, may not be credible enough to persuade a jury to convict Mr. Trump, even in Manhattan. And Republicans are already mounting an effort to frame Mr. Bragg as a political hack who is weaponizing his office to take down the former president on behalf of Democrats.

Trump’s attack and delay tactics are one thing. So he calls Manhattan DA Alvin Bragg bad names. He makes scurrilous accusations against Justice Juan Merchan.  That’s part of the job, and this has been Trump’s modus operandi all along. It’s bad and wrong, but it’s not exactly new.

But at least one thing seems clear: Mr. Bragg may have been the first local prosecutor to do it, but he will probably not be the last. Every local prosecutor in the country will now feel that he or she has free rein to criminally investigate and prosecute presidents after they leave office. Democrats currently cheering the charges against Mr. Trump may feel differently if — or when — a Democrat, perhaps even President Biden, ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make a name for themselves by prosecuting a former president of the United States.

There are a lot of small jurisdictions across this country, each with their own local prosecutor. Let’s assume most are honorable people who would never abuse their office for political purposes. But there need only be a few here and there who, like Trump, are sufficiently shameless as to wield their power in favor of partisan aims. And beyond these intentionally malevolent prosecutors are some who will sincerely believe they are serving the cause of justice by going after, say, Hunter Biden. Whereas before they might have been reluctant to cross that Rubicon, have they now been released from the limits of propriety because they believe, wrongly but sincerely, that any prosecution of Trump is purely political maneuvering by the other side?

Substantial legal impediments stand in the way of prosecutors who might want to charge a former president for official actions, but there are plenty of areas that remain open for scrutiny even during the presidency. Every president travels throughout the country campaigning, fund-raising and making stops for official business. Say a candidate instructs the motorcade to speed to an event and it results in a deadly car accident or he directs organizers to let people into a venue that is over capacity and someone loses his or her life, crushed in the crowd. Are we later going to see an investigation and prosecution for involuntary manslaughter?

The opportunities to “weaponize” prosecutions of political enemies is vast and while the sitting president may be immune from prosecution during the time in office, he’s not afterward. Nor is the first spouse, presidential kids, cousins, aunts or uncles, friends and advisors. If not the big guy or gal, there are many others who can be used to inflict pain or payback.

The argument in response is obvious. But Trump’s prosecution isn’t political, but substantive. No one is above the law, and Trump, like anyone else, must be held accountable for any crimes he committed to the extent the law allows. It is, without a doubt, a sound argument. But it doesn’t address the problem of Republicans seeing this as a political ploy. even if you don’t. Shrieking “but we’re right and you’re not” isn’t nearly as persuasive as people seem to think.

For now, both parties would be well advised to keep the temperature down surrounding Mr. Trump’s indictment, at least so that their constituents do not convince themselves that this should become a part of the standard political tool kit.

Should this spiral out of control into a competition to see whose prosecutors can inflict as much damage on the other side as possible, there will be no shortage of mayhem. While Trump is different, it’s unclear that it will matter to those who refuse to accept the premise that he’s  only reaping what he sowed. It doesn’t help that this is the first indictment, either, given that it’s a stretch in many ways. In the olden days, Republicans being all “law and order-y” would never consider abusing the legal system to prosecute its political enemies as payback for the belief that it’s been done to them. But those Republicans aren’t in control of the party anymore, and to a large extent have flipped sides because of Trump.

Should the parties “keep the temperature down” so as to not make prosecution part of the standard political tool kit? Of course. But can they?