Home / General / Republican prosecutors don’t need a “precedent” to indict political enemies

Republican prosecutors don’t need a “precedent” to indict political enemies

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The remarkably naive argument that indicting Trump is bad because it will sent a “precedent” that can be used by Republican prosecutors is inevitably making the rounds:

But at least one thing seems clear: Mr. Bragg may have been the first local prosecutor to do it, but he will probably not be the last. Every local prosecutor in the country will now feel that he or she has free rein to criminally investigate and prosecute presidents after they leave office. Democrats currently cheering the charges against Mr. Trump may feel differently if — or when — a Democrat, perhaps even President Biden, ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make a name for themselves by prosecuting a former president of the United States.

The vast range, breadth and diversity of criminal laws throughout the country provide plenty of opportunity for mischief. As the attorney general and future justice Robert Jackson observed more than 80 years ago, “A prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” He added, “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.”

Now that Trump has been indicted on what are apparently campaign-finance related charges, the 2004 Democratic vice presidential candidate might be indicted on similar charges in 2011!

The idea that, say, Trump’s Justice Department needed A Democratic DA to go first to engage in a partisan prosecution is beyond absurd. In addition to “Hillary Clinton should be thrown in prison” being a core argument of his campaign, he spent four years trying to find something to pin on Clinton, and failed because she hasn’t committed any crimes. Capo Barr did succeed in getting two incredibly flimsy indictments on trivial charges against Clinton associates from his hyper-partisan special investigator. Needless to say, these prosecutions were celebrated with near-orgasmic glee by many of the anti-anti-Trump suspects now claiming that the president should be ipso facto above the law:

Absolutely hacktacular! The problem Jackson identified is real enough, but it’s not nearly as much as a problem when you’re dealing with people who can afford expensive defense lawyers.

At any rate, the possibility for abusive political prosecutions is always present, and if you think Republicans need some kind of “precedent” to act, google “Don Siegelman.” I won’t take any position on whether the indictment of Trump is justified until it’s unsealed, but “it would set a precedent Republicans could use” would be an extremely dumb reason not to seek an indictment against Trump that was otherwise justified. It’s like the people who think that if Reid hadn’t blown up the judicial filibuster in 2013 Mitch McConnell would have happily allowed a Supreme Court vacancy to sit vacant for the entire Trump administration — “magical thinking” seems too kind.

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