Political prosecution is un-American — we can’t allow Trump to cross that line
How would you like to live in a country where people who criticize the nation’s leader end up in jail? Sounds more like Putin’s Russia than the United States.
Last week, Donald Trump said that if he is returned to the White House, he would like to unleash the federal law enforcement apparatus on his political opponents. This is just another example of the former president’s penchant for openly admitting even his most disturbingly un-American ideas.
His desire to politicize prosecution is one aspect of his repeated campaign promise to use a second presidential term as a vehicle of “retribution.” As he tells his followers, “I am your warrior. I am your justice. And for those who have been wronged and betrayed: I am your retribution.”
Using prosecution as political payback would be a dramatic departure from the aspiration to equal justice for all that has long guided law enforcement decisions. That is why the 2024 election will not just be a choice among presidential candidates, but also a choice among radically different governing ideas.
You’ve heard it before, but with his every utterance, Donald Trump reminds us: The future of democracy and the rule of law in this country will be on the ballot when Americans go to the polls next year.
Trump made this freshly apparent during an interview on Univision News, the Spanish-language TV network. The Univision reporter, Enrique Acevedo, asked him if he would “weaponize the FBI and Justice Department on his opponents in the same way he claims federal law enforcement agencies have been weaponized against him.”
Trump responded, “Yeah. If they do this, and they’ve already done it, but if they follow through on this, yeah, it could certainly happen in reverse. What they’ve done is they’ve released the genie out of the box.”
He continued this turn-about-is-fair play motif: “You know, when you’re president and you’ve done a good job and you’re popular, you don’t go after them so you can win an election.”
“They have done something that allows the next party […] if I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them,’ Trump said, “they’d be out of business. They’d be out of the election.”
These are not just some off-the-cuff musings.
The Washington Post reports that “Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.”
The Post says that “Trump has told advisers and friends in recent months that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley.”
Not surprisingly, President Biden and his family are the top of Trump’s list of people to be prosecuted if he is returned to the Oval Office. Last June he told supporters, “I will appoint a real special prosecutor to go after the most corrupt president in the history of America, Joe Biden, and go after the Biden crime family.”
More than 80 years ago, Attorney General Robert Jackson explained the danger of a plan like Trump’s and why it should have no place in this country. Jackson argued that American history teaches that the rule of law can only survive when prosecutorial decisions are made with what Jackson called, “a detached and impartial view of all groups in his community.”
Jackson warned, as if anticipating Trump’s plan to use prosecution as a tool of political vengeance, that “the most dangerous power of the prosecutor (is) that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. … In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”
“It is in this realm,” Jackson continued, “in which the prosecutor picks some person whom he dislikes or desires to embarrass or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views.”
Three years ago, former Justice Department officials Erica Newland and Kristy Parker expanded on Jackson’s theme. They noted that Trump’s use of political prosecutions would violate the United States Department of Justice “Principles of Federal Prosecution.”
Those principles make clear that a “determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances — recognizing both that serious violations of federal law must be prosecuted and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results.”
The DOJ document says that prosecutorial decisions should reflect the reasoned exercise of prosecutorial authority and “contribute to the fair, evenhanded administration of the federal criminal laws.”
A long line of Supreme Court decisions provide another reminder of how far out of the American mainstream Trump’s desire to use prosecution against his political opponents really is. Those cases hold that “vindictive” prosecution violates the constitutional guarantee of due process of law.
Newland and Parker observe that the Supreme Court has treated any vindictive investigation or prosecution “a due process violation ‘of the most basic sort.’”
As I suggested at the start, Trump’s plan to unleash such vindictive prosecutions is right out of the authoritarian playbook. Strong men in such regimes use their “personalized prosecutorial power is to go after electoral opponents in order to clear the field for elections and squash dissent from opposition parties, their constituents, and the broader public.”
While former President Richard Nixon had a secret “enemies list,” what Trump wants to do is much worse. Nixon tried to keep his plan a secret, fearing the political price he would pay if it became public. Fifty years after Nixon, Trump is openly asking Americans to give him an electoral mandate to weaponize the justice system in this country.
The choice is ours, and the future of democracy and the rule of law in this country will depend on the choice we make.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.