Trump Is Gearing Up for Lawfare
He wants to go after political enemies, the rule of law be damned.
As we think about the very real possibility of a Trump II administration, the consequences for the rule of law should be foremost in our mind. As he promises retribution against his enemies through the courts, should we believe him?
Yes.
Trump will be able to use prosecutorial and investigative power to go after his political opponents. While frivolous charges will not lead to convictions, they will have significant harassment value. More ominously, they will further degrade norms of professionalism on which the rule of law depends.
Trump has long used the threat of criminal prosecution as a political cudgel. “Lock her up” was a favorite chant of the 2016 presidential campaign, and once in office he wanted his Department of Justice to go after both Hillary Clinton and James Comey. These efforts were stymied by a succession of Attorneys General who mostly upheld norms of professionalism, but this has not deterred Trump. In recent years, he has threatened to go after Joe Biden and the “Biden crime family” should he return to office. Among the list of people Trump or his proxies have said should go to jail or be investigated are New York prosecutor Alvin Bragg, Hillary Clinton aide Huma Abedin, Mark Zuckerberg, and politicians Adam Schiff, Ilhan Omar, John Kerry, and Liz Cheney.
The politicization of prosecution is a profound danger to the rule of law for three reasons.
First, it invites tit-for-tat responses over time that raise the stakes of political control. Democracy depends on electoral losers leaving office, knowing that they will live to fight another day. But the prospect of unjustified criminal prosecution reduces the incentive to leave office.
Second, politicized prosecution can degrade public respect for the legal process, especially among strong partisans. Trump’s conviction on the New York state charge of falsifying business records, for example, led to a new round of attacks on the justice system by GOP politicians, undermining confidence in legal institutions among his supporters.
A third, more subtle, reason is that political accountability and legal accountability are to some extent substitutes. Losing office is a cost to bad behavior, which politicians are uniquely susceptible to. This means, perversely, that political candidates ought to get a bit of slack in the realm of the law. In my view, only egregious violations of the law should be prosecuted. (Needless to say, most of the people Trump is targeting don’t fall into this category: people like Liz Cheney are targets precisely because they have attempted to hold Trump to account for his various misdeeds, not because they have committed crimes.)
Unfortunately, while there are barriers to prevent politicized prosecutions of the sort threatened by Trump, they are generally weak.
The first barrier is professional norms among prosecutors. The Justice Department defines its mission as being grounded in independence and impartiality, and it is led by 93 Senate-confirmed U.S. attorneys who have a good deal of autonomy. But Trump promises to politicize the operation of the Justice Department and other government departments and agencies. He will likely make the willingness to prosecute his enemies a litmus test for appointing the Attorney General. He has also floated using an “Acting” Attorney General who could be replaced without Senate confirmation. While permanently appointing unqualified proxies who lack professional judgment may depend on who controls the Senate in November, the ability to control personnel means he can push for bogus charges. And post-Watergate norms and procedures that have limited the president’s influence over the Justice Department are likely to be thrown out the window.
Furthermore, his allies have said his administration would eliminate the FBI’s Department of Legal Counsel, which has put legal constraints on investigations, but also approved the inquiry into his 2016 campaign connections with Russia. They also support having the FBI Director, a Senate-confirmed position, report to political appointees.
There are other barriers to politicized prosecutions. Bringing a successful case requires a credible legal theory that can convince a jury, and the federal district courts are staffed by judges who, with a few exceptions, are not partisan pushovers.
But there are few legal limits to charging decisions. There is an old common law doctrine of malicious prosecution, which allows civil suits to recover damages from prosecutions pursued without probable cause—but it is almost never successful. Furthermore, Trump’s willingness to browbeat state officials might lead some red-state prosecutors to seek to make a name for themselves in MAGA-land by bringing similar suits.
And even if suits are not successful, being targeted has real costs. Trump can very likely order investigations and prosecutions which will have a significant harassment effect on their targets. As criminal justice scholar Malcolm Feeley put it, the process is the punishment, and even weak cases have significant harassment value. Being the target of an investigation can require the production of documents and the hiring of lawyers, which can be expensive. Former FBI Deputy Director Andrew McCabe, fired by Trump’s Attorney General, spent more than $500,000 in contesting his firing.
The bigger consequence of such suits would be the undermining of professional norms associated with the rule of law. Investigating crime by high-level politicians is a sensitive matter that requires a non-partisan approach. We should be relieved when we see the indictment of Hunter Biden or New York Mayor Eric Adams by a Justice Department led by co-partisans. We should be deeply dismayed by political campaign promises to prosecute one’s opponents, whether those come from Letitia James or Donald Trump. When we turn prosecution into a simple political weapon, we degrade both our politics and the law at the same time.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.
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Well this is rich in either Babalon Bee level satire or else blind idiot hypocrisy.
After Trump and his supports have had to deal with eight years of government, legal and judicial power abuse against them, the fear porn here is that HE is the threat.
Frankly, I support Trump doing to the Democrats and their Republican sympathizers exactly what they did to him and his supporters except in this case base the actions on real constitutional law and precedent.
“degrade public respect for the legal process”—the current administration already did this. This article is just another reminder of projection reflexes of the left. Interestingly, how we are told we can’t believe or trust what Trump says unless it serves the lefts narrative. I’m not a Trump fan but this article just fuels his followers and I can understand why. Please stop doing articles like this. You are not helping.