The age of politicized prosecutions is upon us. No longer such a thing as guilty or not guilty based on the law and the facts.
The federal prosecutions of Donald Trump over Jan. 6 and the Mar-a-Lago documents were not politicized. Nor was the Manhattan case about falsifying business records to cover up a hush money payment to a porn actress. Those were based on evidence, the law and the facts.
But Trump claimed that they were politicized — that his enemies were out to get him. It was cynical and untrue, but he made it his mantra. And he largely won, not by a jury verdict, but by legerdemain and a helpful assist from the Supreme Court.
Trump has vowed revenge — to put his political enemies in jail, possibly including Special Counsel Jack Smith, Rep. Adam Schiff (D-Calif.) and former Rep. Liz Cheney (R-Wyo.). According to NPR, Trump during the campaign “made more than 100 threats to prosecute or punish perceived enemies.”
Revenge prosecutions had always been alien to our laws and our way of life. No longer.
Federal prosecutors are supposed to bring a case only when they believe a federal crime has been committed and there is sufficient evidence to obtain a conviction at trial. It is said that a prosecutor could get a grand jury to indict a ham sandwich, so the grand jury is hardly a brake on a revenge prosecution. But if prosecutors attempted to bring a case without sufficient evidence, the court would dismiss the indictment.
But even where an indictment cannot fly, a grand jury investigation would be enough to impoverish or destroy the target. Using the criminal justice system for political revenge is the odious behavior of the Putins and Assads of the world. That’s why America has a Constitution.
Trump’s threats loom so ominous that President Biden is reportedly considering preemptive pardons for categories of people who have not been charged that Trump might go after. Preemptive pardons are problematical but precedented. President Jimmy Carter pardoned all the Vietnam draft evaders. But there could be legal issues as to who is covered and who is not.
Whether or not there are prosecutions of Trump’s enemies, Trump’s acolyte Kash Patel, who may lead the FBI, can investigate the hell out of anyone who has held the line against MAGA. Then Pam Bondi — Trump’s other acolyte, his second pick for attorney general — may get them before a federal grand jury. If she can’t make anything stick, there is always the option of civil investigations and lawsuits delving into the finances, businesses and tax returns of anyone fitting the description of a political enemy.
Who said we are a government of laws, not men?
When I went to law school, I emerged with a certain naivete that criminal prosecutions are all about the law and the facts. We called that “the rule of law,” and we learned that no one is above the law, not even the president. It was an article of faith.
Then I became a federal prosecutor in Manhattan under Robert M. Morgenthau, a Democrat, whose father had served in FDR’s cabinet.
No applicant for a job in Morgenthau’s office was asked about political affiliation. I came to realize that my colleagues represented all shades of the political spectrum. When we brought federal prosecutions, the case was always about what the defendant did, not who the defendant was.
There is no law that says only Republicans can prosecute Republicans, and Democrats only Democrats. Morgenthau famously said, “A man is not immune from prosecution just because a United States attorney happens not to like him.”
Politicized prosecutions often result in acquittals. In August 2020, a roving vigilante named Kyle Rittenhouse shot and killed two men, and maimed a third, in Kenosha, Wisconsin amid racial justice protests. His sophisticated defense was financed by right-wing organizations, which paid for jury focus groups to help his lawyers decide whether he should take the witness stand and what he should say. Rittenhouse took the stand, and was acquitted on all counts. It was another political miscarriage of justice.
Attorney General Merrick Garland, a former judge, promised to be guided only by the facts and the law. His Justice Department indicted and convicted Sen. Bob Menendez (D-N.J.) of 16 crimes, including bribery. Menendez awaits sentencing.
Garland’s Justice Department also indicted New York City’s Democratic Mayor Eric Adams on five counts of bribery and election fraud. Adams, taking a leaf from Trump’s book, claimed his indictment was politically inspired by woke liberals who were critical of the mayor’s tough stance on immigration. He is said to be expecting a pardon from Trump once he is sworn in, and Trump has hinted that he might give him one.
And, speaking of pardons, Biden, after saying he wouldn’t, pardoned his son Hunter, convicted on gun and tax charges. The case had been brought by a special counsel. Although the gun charge was venial and the taxes paid long ago, the pardon seemed like a political whitewash. What’s sauce for the goose works for the gander, too.
As a finishing touch, Trump has vowed on day one to pardon the Jan. 6, 2021 rioters, many of whom are in jail.
It calls to mind the 1940 warning of Justice Robert H. Jackson, when he was attorney general: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also host of the public television talk show and podcast Conversations with Jim Zirin.
