Should Trump Be Federally Prosecuted, a Complementary View

Paul has written his typically thoughtful and fair-minded analysis of the question whether Trump should be prosecuted. Having been a federal prosecutor for most of my career, I would add a few thoughts.

Initially, as is often true in law, the lead question (and frequently the most important), is: Who gets to decide? 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 importance, the matter would be run by President Biden (as one of my cases, US v. Dickerson, was, so I have learned, 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 (largely ginned-up) “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 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 woeful 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 that Paul’s post brought to 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 awful 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 for now. 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, as Paul’s analysis shows it easily could, that the prosecution, though credible, had come up a bit short in meeting the beyond-a-reasonable-doubt standard, but that Trump (a “white supremacist,” so 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 a dicey 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.