Left-liberal columnist fears Trump conviction will result in "payback"

It will

Ruth Marcus begins her latest Washington Post column this way:

Reasonable people can differ about the wisdom of prosecuting Donald Trump. Reasonable people can differ about the justice of the guilty verdict in the Manhattan hush money case against the former president.

When a leading Post critic of Trump concedes that reasonable people can think justice wasn’t done in the New York hush-money trial, you can be pretty sure that justice wasn’t done and that, in fact, the case was garbage.

But Marcus has an ulterior motive for this concession. She’s clearing the way for an attack on those who, as a result of the obvious injustice of the New York prosecution and verdict, want revenge-prosecutions of Democrats.

Marcus understands what many Democrats don’t seem to grasp (or just don’t worry about) — that when they discard norms, Republicans are likely to respond in kind.

For example, when you abolish the Senate filibuster of court of appeals judges in order to get three left-liberal D.C. Circuit nominees confirmed, the other side is likely to abolish it to get conservative Supreme Court nominees confirmed. Say hello to Justices Gorsuch, Kavanaugh, and Barrett.

Or when you block, or try to block, the other Party’s Supreme Court nominees by shamelessly attacking their character, that Party is likely to make it difficult for you to confirm your judicial nominees.

Or, to cite a current example, when you attack a sitting Supreme Court Justice by citing his wife’s political activism (in the case of Justice Thomas) or expression (in the case of Justice Alito), that’s likely to bite you, as well. After all, liberal lawyers and jurists usually have spouses, too. Indeed, in the D.C. area at least, there are more liberal power couples than conservative ones.

To be fair, Republicans sometimes are similarly short-sighted when it comes to norms. The impeachment of Bill Clinton (a futile act which I agreed with at the time) opened the door to an era of converting presidential impeachment into just another political weapon. But most of the institutional norm-busting comes from Democrats and the left.

Thus, Marcus is right to worry that there will be payback for the lawfare Democrats have waged against Trump. And she marshals evidence of this obvious prospect in the form of statements by Steve Bannon, Stephen Miller, Jeff Clark, Mike Davis, and John Yoo.

It’s true that none of these statements advocates bringing meritless charges against Democrats. None calls for twisting the law into a pretzel the way Alvin Bragg (aided by a former high-level member of the Biden Justice Department) did in the New York prosecution of Trump.

But if we’re honest, we will acknowledge that there will likely be some twisting if, for example, pro-Trump prosecutors heed Clark’s call to “step forward and take aggressive action. . .just for starters” by filing civil rights suits against those who prosecuted Trump.

What should be approach when Republicans consider whether to prosecute Democratic presidents and leading presidential contenders in the future? There are three alternatives.

The first is to do it only in those extremely rare cases of egregious crimes that everyone recognizes as crimes and when the evidence is cut-and-dry and when similar violations have not been overlooked in the past. Under this high standard, the only Trump case that might have been pursued is obstruction of justice in connection with the classified documents the FBI tried to retrieve.

The second approach is to investigate and prosecute according to normal practice, but not to look aggressively for crimes to prosecute and certainly not to stretch the law. Under this standard, neither the New York case nor the Georgia case would have been prosecuted. The D.C. case probably wouldn’t have been either, in my view. Jack Smith found he had no case for insurrection, a genuine and serious crime, and seems to have gone rummaging through the federal code looking for a crime he could charge in its place.

The third approach is the one Alvin Bragg, Fani Willis, and (arguably) Jack Smith subjected Trump to. It can be summarized by the statement attributed to Stalin’s infamous secret police chief Lavrentiy Beria: “Show me the man and I’ll show you the crime.”

The first approach is the one I preferred until recently. Locking up one’s political rivals or defeated political opponents is what banana republics and authoritarian regimes do.

For a democracy like the U.S., it’s a very bad look. And, as Bill has pointed out, it provides a big incentive for defeated presidents not to give up power. A decent regard for the political process counsels in favor of a lenient standard when it comes to prosecuting presidents and presidential candidates.

Therefore, as much as I disliked Richard Nixon, I thought President Ford’s pardon of his predecessor was a wise and statesmanlike action. Similarly, it seems reasonable not to have prosecuted Hillary Clinton when she was running for president. Laying out the facts for the American public and leaving it at that, as James Comey did, was probably the better course.

But this can no longer be the Republican’s approach. You can’t have a system in which Democrats throw the book at Republican presidents and Republicans abstain from prosecuting Democratic ones in all but the most egregious cases.

Does this mean, Republicans prosecutors, emulating Alvin Bragg and Fani Willis, should throw the book at Democratic presidents and presidential candidates? I don’t think so. As tempting as tit-for-tat is, we should continue to respect the rule of law.

It’s consistent with the rule of law to prosecute where prosecution is called for under ordinary standards. In fact, that approach is more consistent with the rule of law than my (previously) preferred approach of cutting presidents and presidential candidates slack in order to maintain political stability.

But stretching the law the way Bragg and Willis have done goes too far. This, I assume, is why Marcus couldn’t find any quotes explicitly calling that approach. If a policy is too extreme to be publicly advocated, it’s too extreme to be adopted.

But in all likelihood, it will be adopted in these kinds of cases. Thanks to Alvin Bragg, there’s blood in the water. More will be spilled, and a fair amount of it probably will be the blood of Democrats.