In a political landscape where party affiliations dictate much of the discourse, it comes as no surprise that Manhattan District Attorney Alvin Bragg’s decision to indict former President Donald Trump on hush money charges is seen through the lens of partisanship. Some might argue that Bragg’s move is a calculated one, aimed at shoring up his Democratic credentials in the lead-up to the re-election campaign. Yet, the deeper implications of such a move are far-reaching and cannot be ignored, for when prosecutors are chosen based on their political affiliations, the impartial administration of justice becomes a mere illusion.
The notion that justice is served regardless of the outcome in a courtroom may be nothing more than a mere platitude, especially when it comes to the motivations of prosecutors. Rather than upholding the principles of justice, some prosecutors are more concerned with securing a conviction, even if it means resorting to underhanded tactics or manipulating the system. For many prosecutors, their pursuit of a guilty verdict is driven not by a desire for justice, but by a thirst for recognition, a desire for vengeance against political adversaries, or the promise of lucrative job opportunities in the future.
The United States Supreme Court, as a practical matter, gave a constitutional green light to politically motivated prosecutions in Reno v. American Arab Anti-Discrimination Committee (1999).
Welcome to the world of limitless prosecutorial discretion. Attorney General Robert Jackson warned more than 80 years ago that the greatest danger in law enforcement is not discovering a crime and searching for the culprit, but picking out someone personally obnoxious or politically hostile to the prosecutor and scouring the voluminous criminal code to pin an offense on them.
Criminal defense lawyer Harvey Silverglate, in his pathbreaking book, “Three Felonies a Day: How the Feds Target the Innocent,” elaborates on the many technical violations that are inevitable each day with laws and regulations multiplying like rabbits with infinitely vague terminology.
Trump’s prosecution is not a legal unicorn. Former Democratic vice presidential nominee John Edwards was prosecuted for a payoff to his mistress Rielle Hunter. He was acquitted on one count with a hung jury on five other counts that the prosecutor chose not to retry.
On the other hand, President Bill Clinton’s moral and legal derelictions vis-à-vis Monica
Lewinsky and Paula Jones were sanctioned with a rap on the knuckles: impeachment by the House of Representatives, acquittal by the Senate, suspension of his law license, and an $850,000 settlement payment to Jones.
But considering the ongoing criminal investigations of Trump for the vastly more serious crimes of insurrection, conspiracy to defraud the United States, obstruction of justice, obliteration of presidential records, and conspiracy to manufacture bogus presidential electors, DA Bragg’s prosecution is an overreach—like convicting Chicago gangster Al Capone for income tax evasion while overlooking the St. Valentine’s Day Massacre of seven of his gangland rivals.
On the other hand, Trump brought his multiple legal travails on himself. He was not tricked into betraying and humiliating his wife, Melania. He was no ingenue. He was not tricked into paying to keep their stories out of the press to boost his presidential electoral prospects. He was not tricked by Billy Bush into boasting about seducing a married woman when he said, “I don’t even wait. And when you’re a star, they let you do it. You can do anything…Grab ’em by the pussy.”
Trump’s financial chicanery and dodges have been notorious for years, including paying less in federal income taxes than his hard-working assistants. His narcissism is boundless. He never learned Benjamin Franklin’s wisdom, “He who falls in love with himself will have no rivals.”
The reality we face today is that politics have long been a part of the criminal justice system, and the power of prosecutors to wield their discretion in choosing whom to charge and with what crimes is immense. While this discretion can be used to pursue justice, there is the obvious worry that it can be used to unfairly target individuals for personal or political reasons. The case of Trump is just one example of how difficult this issue is to grasp.
Ultimately, what is at stake is the fundamental principle that justice should be blind, and that prosecutors should not wield their mighty sword for evil or personal gain. Every individual should be treated fairly and equally under the law, even someone as flawed as Trump.