[Eric Posner] Prosecutions, politics don't mix

As America’s attention turns to November’s presidential election between Kamala Harris and Donald Trump, the prosecutions of the former president have been all but forgotten. But Democrats hope that Harris’s previous role as a district attorney may help jog memories and persuade some crucial swing voters to ditch the felon for the prosecutor. Will it work? Or has the failed assassination attempt against Trump retroactively mythologized the sputtering prosecutions as Stations of the Cross on the way to his near-martyrdom?

The prosecutions have, so far, failed to hurt Trump’s reelection campaign. The prosecution for mishandling confidential documents, filed on June 8, 2023, by Special Counsel Jack Smith, got bogged down as the presiding judge, Aileen Cannon, held hearing after hearing on frequently frivolous motions, before finally dismissing the case on the grounds that Smith’s appointment was unconstitutional.

Similarly, the federal prosecution for election interference, also brought by Smith, has been thrown into disarray by the Supreme Court’s ruling that Trump enjoys immunity for some of the actions listed in the indictment. And the Georgia election interference case sputtered to a halt when the court learned that the prosecutor, Fani Willis, had been involved in a romantic relationship with a subordinate. The case is now on hold as the Georgia Court of Appeals considers whether she should be removed.

The only successful prosecution so far was New York District Attorney Alvin Bragg’s fraud case, which resulted in Trump’s conviction for falsifying business records, apparently to conceal hush-money payments to an adult film actress. Ironically, this was the weakest of the four cases, and the least likely to result in jail time or any other serious penalty. The verdict had no impact on Trump’s poll numbers, and instead led to a flood of donations to Trump’s campaign from voters who were outraged at what they saw as a political prosecution.

Finally, there was also the failed attempt to keep Trump off the ballot based on the constitution’s insurrection clause -- an argument that all nine Supreme Court justices rejected. All this has provided Republicans with the potent political argument that Trump’s opponents have abused the legal system to harass him because they can’t beat him fairly in the upcoming election.

The reality is more complicated, of course. Trump all but begged Smith to bring the confidential documents case by refusing to turn over the documents when requested. The chaos of January 6, 2021, has led to hundreds of legitimate prosecutions of rioters, and Trump can certainly be held morally responsible for the deaths and injuries on that day, whether or not he actually violated the law. Moreover, Smith was unlucky in his draw of Judge Cannon, who at best can be described as excessively cautious, and at worst out of her depth or possibly even biased in favor of Trump, who appointed her.

It is still possible that Trump could end up in jail. If he loses the election, proceedings in the remaining three cases will lurch forward. But the prosecutions appear to have improved his electoral prospects, and if he defeats Harris, they will surely be terminated or suspended because of the difficulties of prosecuting a sitting president.

Much of this could have been (and was) predicted. But there are still some lessons to be learned. The standard concern about prosecutions of political officials is that they can set off an endless round of retaliatory prosecutions. Trump himself has said that he will prosecute Democrats in retaliation for their prosecutions of him -- and one could easily imagine that future Democratic presidents would then retaliate against Trump, his aides, and other Republicans for the retaliations.

This type of tit-for-tat reprisal, which could spread to the states, would further inflame US politics and potentially lead presidents and other government officials to scheme to stay in power rather than take the risk of being prosecuted if they step down voluntarily after losing an election. That would be the end of American democracy.

According to this theory, constitutional democracy has survived precisely because the political class has resisted the temptation to launch political prosecutions. It is said that this norm was established as long as 200 years ago when prosecutions of various political opponents ran into opposition from the courts and popular opinion, thanks in part to still-fresh memories of British rule.

The problem with this view, of course, is that Trump violated the norm against political prosecution long before Democrats got around to it. Back in 2016, he promised to indict Hillary Clinton; since then -- both in and out of office, and before and after his own indictments -- he has threatened to order prosecutions of a litany of political opponents and even supporters who he believes have betrayed him. The current round of prosecutions of Trump and his aides can be seen as the inevitable result of a breakdown initiated by Trump himself.

But there is another, better way to look at it all. The cases against Trump merely illustrate that trials of political opponents are exceedingly risky in a democratic country, because the defendants can always turn the tables and accuse the prosecutors of abusing the legal system for their own political reasons. Defendants benefit from the heightened publicity and voters’ natural suspicion that governments tend to abuse their powers, all of which make it impossible for courts to ignore minor missteps made by the prosecution.

Willis’ romantic adventures probably would not have come to light if she had been prosecuting anyone but Trump. Equally, the slow pace of the proceedings in all the cases is the result of the reasonable care shown by judges who are responsible for upholding public confidence in the judicial system. They are facing delicate and unprecedented questions about how to treat a defendant who is running for the presidency.

The silver lining is that if Trump is elected, he probably will not follow through on his threats to order prosecutions of half the Democratic leadership and a good number of Republicans as well. And even if he does, the cases will blow up in his face. If there is any lesson from the Trump trials, it is that political prosecutions in a democratic country are more likely to hurt those in power than their opponents.

Eric Posner

Eric Posner is a professor at the University of Chicago Law School. The views expressed here are the writer’s own. -- Ed.

(Project Syndicate)