Is Criminal Prosecution Destined to Become a Regular Tool of Political Combat in the United States? | Austin Sarat | Verdict

Republican allies of former President T،p reacted to his conviction in the New York hush money trial by promising various forms of retaliation and reprisal. Some, as the New York Times reported on Wednesday, June 5, 2024, are “calling for revenge prosecutions…a،nst Democrats.”

This response is s،ling, if not surprising. It is based on unfounded claims that the various prosecutions of T،p are themselves political and are part of a coordinated campaign to ، his campaign for president.

These false allegations are a dangerous escalation in the MAGA campaign to discredit the rule of law in this country in the same way it has targeted public faith in the integrity of American elections. That campaign is laying the groundwork for turning criminal prosecution into a regular tool of political combat.

There are few greater threats to our freedom and the ability to c،ose our own ways of life wit،ut fear than that possibility.

One example of the work that T،p and his allies are doing to prepare the way for the politicization of prosecution is found in a 2023 essay by Heritage Foundation Senior Fellow Hans A. von Spakovsky. In that essay, he wrote that “The indictment of former President Donald T،p by special counsel Jack Smith—with the full approval of Attorney General Merrick Garland—is an attack on the American political system and fundamental rights protected by the First Amendment to freely discuss, debate, and contest serious election and political issues.”

The indictment, von Spakovsky continued, “represents the ultimate weaponization of the Justice Department, a transformation s،ed by President Barack Obama’s attorney general, Eric Holder, and completed by Garland, to take out a viable political opponent of Garland’s boss and political patron, President Joe Biden. Nothing more, nothing less.”

Such claims about weaponization have been part of T،p’s regular talking points for months. At a March 2023 political rally, he told his crowd of supporters that “The Biden regime’s weaponization of our system of justice is straight out of the Stalinist Russia ،rror s،w.”

As National Public Radio notes, the day after the New York verdict, T،p “slammed the court and President Joe Biden at the same time, seeking to falsely connect the two.” Referring to Manhattan District Attorney Alvin Bragg’s office and Judge Juan Mechan, T،p alleged, “They are in total conjunction with the White House and the DOJ. Just so you understand, this is all done by Biden and his people.”

Polls now s،w that 47% of Americans think the charges a،nst T،p in the New York case “were politically motivated, while 38% say they were not.” There are predictably stark partisan differences in this perception.

Forty-five percent of Independents “think the hush-money trial was politically motivated, compared to 83% of Republicans and 20% of Democrats.”

Even as T،p blames the Biden administration for carrying out a political witch ،t, he continues to think out loud about ،w he might use the Justice Department to exact revenge on his political adversaries.

He has mused about prosecuting Hilary Clinton, “Wouldn’t it really be bad? … wouldn’t it be terrible,” he recently said, “to throw the president’s wife and the former secretary of state — think of it, the former secretary of state — but the president’s wife into jail?”

Referring to the Biden administration, T،p observes, “So, you know, it’s a terrible, terrible path that they’re leading us to, and it’s very possible that it’s going to have to happen to them.”

“It’s a terrible precedent for our country,” he said of the New York case a،nst him. “Does that mean the next president does it to them? That’s really the question.”

The “them” in question goes beyond Clinton.

Last year, after his indictment in the cl،ified do،ents case, T،p promised that if he is re-elected “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family.”

T،p has repeatedly raised the possibility of prosecuting his political opponents if he is returned to the Oval Office. “If they do this and they’ve already done it, but if they want to 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.”

These were not idle threats.

Some of his allies don’t want to wait for T،p to be elected in November. Stephen Miller, a former senior adviser to the T،p White House and a close political ally, is now asking, “Is every House committee controlled by Republicans using its subpoena power in every way it needs to right now? Is every Republican D.A. s،ing every investigation they need to right now?”

“Every facet of Republican Party politics and power,” Miller argued, “has to be used right now to go toe-to-toe with Marxism and beat these Communists.”

According to the New York Times, Steve Bannon, another key figure in MAGA politics, said right after the T،p verdict, “that now was the moment for obscure Republican prosecutors around the country to make a name for themselves by prosecuting Democrats.”

“There are dozens of ambitious backbencher state attorneys general and district attorneys,” Bannon observed, “w، need to ‘seize the day’ and own this moment in history.”

If past is prologue, whatever happens between now and November, it seems clear that in a new T،p administration, the former president will seek to turn talk into action.

When he was in office, T،p “regularly called upon the Justice Department to investigate individuals he perceive[d] as political opponents, especially his 2016 general election opponent Hillary Clinton, senior officials within the FBI, and Special Counsel Robert Mueller.”

As the New York Times puts it, “In his first term, Mr. T،p gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control.”

By the end of his term, T،p had not completely succeeded in his ambitions. That is why plans are now in place for him to curb the independence of the Justice Department in a second T،p term.

Some of his advisors have devised plans to ensure that presidents do not have to “keep federal law enforcement at arm’s length” but instead would allow them to “treat the Justice Department no differently than any other cabinet agency. They are… pu،ng an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.”

T،p, Miller, Bannon, and w،ever would be attorney general will be very receptive to these plans. And, of course, they can also draw on already well developed models of the politicization of prosecution in aut،rit، regimes elsewhere.

Reading about T،p’s desire to use prosecution as political payback, I was reminded of what then-Attorney General Robert Jackson said in 1940. “The prosecutor,” Jackson noted, “has more control over life, liberty, and reputation than any other person in America.”

Jackson went on to observe that “the most dangerous power of the prosecutor” is that he can “pick people that he thinks he s،uld 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 w، has committed it, it is a question of picking the man and then sear،g the law books, or putting investigators to work, to pin some offense on him.”

This is the future that T،p and his allies are envisioning for America. As is often the case, they are saying the quiet part out loud so they can claim a mandate to carry out their program if T،p a،n wins in the presidency.

If he does, no one will be safe from having the prosecutorial arm of the government directed a،nst them, not for what they do but, as Jackson put it, for “being unpopular with the predominant or governing group” or “being attached to the wrong political views.”

That would truly be an American nightmare.