The Washington Post denounces "unprecedented" efforts to investigate Trump's investigators.
It ignores the truly unprecedented prosecutions of Trump.
The Washington Post moans that GOP investigations of the prosecutions of Donald Trump “threaten to degrade an important precedent that protects prosecutorial independence and the ability to fairly root out wrongdoing without partisan influence or gain.” It cites “legal experts.”
Neither the Post nor its experts explains how investigating the serial prosecutions of Donald Trump threatens the independence of prosecutors. The congressional investigations notwithstanding, Jack Smith, Alvin Bragg, and Fani Willis remain free to prosecute Trump as they see fit. Congress can neither stop them nor dictate how the prosecutions will proceed.
Congress exercises oversight responsibility over broad swaths of the federal government, including agencies with the power to sue, without threatening agency independence. For example, a congressional committee might bring the EEOC chairman or general counsel before it to challenge the agency’s decisions about which kinds of cases to bring. The EEOC’s independence is not thereby threatened. The agency can still litigate as it sees fit.
The real problem with the Post’s piece, though, is its complaint that Republicans are breaking with “important precedent” by not sitting silently by while three Democrat controlled prosecutor offices bring four criminal cases, totaling 91 felony charges, against a former president and the likely GOP nominee for president — cases that, combined, would likely take more than a year to try.
It’s the prosecution of Trump that breaks important precedent. Nothing like it has ever happened before. Now that it has, all bets are off.
This is why Bill and I argued that Trump should only be prosecuted if (1) the crime he’s accused of is a straightforward, easily understood one, and not something ginned up through creative lawyering and (2) the evidence that he committed the crime is strong.
In my view, three of the four prosecutions fail this test. The New York prosecution is so silly that even some Trump-hating Democrats found fault with it. The Atlanta prosecution relies on RICO, as if a two-month effort to challenge an election amounted to a racket. The federal case in D.C. is borderline at best, and therefore shouldn’t have been brought.
How could anyone have expected this unprecedented use of the legal system by Democrats to produce other than an unprecedented response from Republicans. Yet, the response so far isn’t even that unprecedented. The Post acknowledges that “investigating investigators’ methods and scruples is a strategy that has been used by both parties during tumultuous moments, and is a well-worn tool for lawmakers. . .”
As I mentioned, the Post’s article relies on “legal experts.” But the statements of these experts are laughable. One expert, a law professor at Georgia State, finds the investigations “incredibly troubling.” He explains:
For years, I’ve told my students that one principle we can always rely on is the principle of prosecutorial discretion — it is unassailable and that is the essence of their power. They can choose which cases to pursue an which cases not to pursue.
Fine. But I hope this prof didn’t teach his students that exercises of prosecutorial discretion are exempt from criticism, including by lawmakers. What would Democrats do about a local prosecutor they believed was using his discretion to come down harder on blacks than on whites? They would raise hell, and call in the DOJ to investigate.
Another of the Post’s experts distinguishes a criminal investigation from a congressional investigation this way:
A professional and correct Justice Department investigation starts with a fact and then follows to another fact, and leads to some sort of conclusion. A Capitol Hill political investigation often starts with a conclusion and then looks for facts to support it.
But we shouldn’t assume that the investigations conducted by Bragg and Willis, elected office holders just like congressmen who want to investigate them, are “professional and correct.” Nor do I assume that the investigation by Jack Smith and the Garland-Biden DOJ meets that description. Recall that when Smith prosecuted Bob McDonnell, then a prominent Republican figure, the result was a 8-0 defeat at the Supreme Court.
The congressional investigations about which the Post and its experts complain are, in effect, inquiries into whether the prosecutions of Trump are “professional and correct” and whether they start with facts rather than a conclusion or ulterior motive. I don’t deny the partisan nature of the inquiries, but in my view they are a fair response to the partisan lawfare being waged against Trump.
One of the Post’s experts argues, however, that lawmakers have other means to determine whether DOJ investigations and prosecutions are being handled properly. He says they can rely on the DOJ’s inspector general or its Office of Professional Responsibility.
But this amounts to relying on the DOJ to check on itself. That might be okay when the stakes are low. But when a former president and likely presidential nominee is the target and the DOJ is controlled by the opposing party, it’s not good enough.
The Democrats (and too many Republicans) fail to understand the fundamentally conservative principle that norm-busting carries serious consequences — most of them usually bad. Serial impeachments and prosecutions of a hated adversary feel good and please the base. But they up the ante in a polity where the two sides are already at each other’s throats.
To be sure, Trump upped the ante considerably with his norm-busting post-2020 election day and post-presidency conduct. The right response might have to prosecute him for his mishandling of classified documents and his resistance to efforts to get the documents back — charges that anyone can understand and that seem well supported by the facts.
The right response was not the prosecutorial piling on that has occurred. The GOP’s decision to investigate this blitz was completely predictable and, on balance, justified.
Glad the WaPo has discovered the wonderfulness of prosecutors. Let's see how long it lasts when someone wants to prosecute some BLM thug.
Great analysis. Jim Dueholm