Trump’s Behavior Strengthens Case Against Him

More generally, there are plenty of petty (and even some not so petty) crimes on the books that a prosecutor intent on imprisoning a target could invoke if they were dead set on indictment. But prosecutors aren’t supposed to figure out whom to indict and then look for a crime that can yield a conviction.

On the other hand, we should ignore calls to avoid investigations and prosecutions because of their likely electoral effects. Will Trump’s chances of winning the Republican presidential nomination in 2024, should he seek it, be helped or harmed by enforcing a warrant and seizing boxes of materials that he (allegedly) shouldn’t have had in his possession?(1)What about the possibility of angering Trump’s supporters to the point of civil unrest?  Even if prosecutors could know the answer to these questions, the potential political fallout shouldn’t be a factor in their decision about whether to prosecute. 

If the rule of law means anything, it is that no one can use the threat of violence as a Get Out of Jail Free card. As Greg Sargent of the Washington Post’s Plum Line blog wrote, “…there will be no appeasing Donald Trump and his most fervent supporters. There will be no point at which they acknowledge that any law enforcement activity related to the court-approved search of the former president’s home is legitimate.”

Indeed, the former president’s devout fans are likely to take that view of any criminal justice action targeting him, no matter the evidence. We know who Trump is. Just as he can’t lose an election without claiming fraud (indeed, he claims fraud even when he wins), he will never voluntarily acknowledge the legitimacy of a legal action against him or his allies. That can’t be the basis for ignoring what otherwise would be a decision to investigate. Or indict.

Prosecution is always a judgment call. And in that sense prosecution decisions are always going to be broadly political. When the person involved is a politician, that is only going to be more obvious. And that’s not bad. The criminal justice system is part of the larger political system. The rule of law, after all, is a political concept, part of a general idea of how self-government should work.

What prosecution decisions shouldn’t be is partisan, which is to say, they shouldn’t be based on the best interests of one political party. Nor should they be personal, where individuals are singled out for prosecution — or spared from it — because of their political affiliation. That’s why the “lock her up” chants directed at Hillary Clinton during the 2016 presidential campaign (and, eventually, at a host of other opponents) sanctioned by Trump were such a big deal. They were a repudiation of the entire notion that the law shouldn’t be partisan or personal. They were, in effect, a repudiation of the rule of law.

So where does that leave us? Trump’s illiberal behavior and that of his supporters shouldn’t give him immunity. But while a decision to indict Trump would need to be clearly explained, we can’t judge it on whether it is persuasive to voters at large. And there is no way law enforcement can make sure that their actions won’t be misconstrued by Trump and his supporters, or even by the larger block of Republicans who find appeasing the former president their safest path.

Moreover, because any decision to indict or not is inherently political, Trump’s behavior is a legitimate part of that decision. Trump’s implicit claim that he is above the law should factor into prosecution decisions — and make an indictment more appropriate. So should Trump’s active political career. Gerald Ford’s pardon of Richard Nixon was justified in part because Nixon mostly accepted exile from active politics. Trump is attempting to poison the republic as rapidly as he can. That can’t justify seeking a way to imprison him, but it certainly can be taken into account when deciding whether or not to overlook crimes that come to the attention of the government. Even at the lowest levels of law enforcement, a suspect who reacts to an investigation by rushing to social media with a pledge to continue ignoring the law would be more likely to be prosecuted than one who acts contrite.

In other words, the decision can’t be personal in the sense of Trump being a political opponent of the current president, but it can be — should be — personal in that it must take into account who Trump is and what he is doing. As many have pointed out, claims that this or that action against Trump is unprecedented for a former president get it all wrong; what is unprecedented was a lawless president and former president.

It should take a good deal more than having a plausible case to decide to indict a former president. It’s really closer to the other way around: An indictment must be made when the evidence, the law and the former president himself make it obvious that not acting would be the exception to normal prosecutorial standards. 

As a non-lawyer, I can’t say whether that’s true for any of the investigations swirling around Trump. What I can say is that through his own actions, Trump has pretty much begged prosecutors to act if they do have a case. Because otherwise it sure will look as if they are succumbing to his intimidation.

More From Other Writers at Bloomberg Opinion:

Would Locking Up Trump Serve the Public Interest?: Clive Crook

In US Politics, Moderates Still Run the Show: David A. Hopkins

Why Did Trump Take Classified Documents in the First Place?: Timothy L. O’Brien

(1) At least one poll since the FBI seized boxes of material from Trump suggested he was now looking stronger for the 2024 nomination. But ultra-early polling can be misleading because it tends to reflect name recognition and reflect which candidates have been in the news and therefore on top of voters’ minds. All in all, I’d recommend mostly ignoring nomination or general election polls this early.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.

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