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I've been ruminating on a question about Trump's prosecution. One of the common arguments I've come across is that prosecuting Trump is improper because it's just political retaliation falsely disguised as a neutral and dispassionate application of the law. In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out. This is potentially also supported by the fact that, speeding tickets notwithstanding, no other US president (former or sitting) has ever been charged for anything before. The fact that US institutions chose to break such a long-standing norm at this particular moment seems a bit too much of a coincidence to believe it was done with honest motivations.
Assuming all of the above is true, are there any limiting principles? Until something happens for the first time, it remains by definition "unprecedented", so if your rule is based solely on precedence then nothing would ever be allowed to happen unless it has already happened before which doesn't seem workable. Another consideration also is just because something hasn't happened for a very a long time, it doesn't mean it accidentally created an inviolable precedent that can never be broken now. For example, the crime of piracy is one of the few specifically mentioned in the Constitution and it used to be regularly prosecuted way back in the day but there was a very long lull before the feds dusted it off to go after some Somalis.
I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.
So if the longstanding norm against prosecution can indeed be broken, then under which circumstances? For Trump's supporters, I suppose one possible answer is that he has been the target of such a relentless and unprecedented avalanche of (presumably bad faith) lawfare — Russiagate, impeachments, etc. — that trust in the system has been depleted to the point that all action against him should be assumed to be ill-disguised political retaliation as a rule. Assuming that's true, then what? Should the rule be that other politicians can be prosecuted but that Trump should have a carve-out in consideration of the unusually aggressive persecution he had to endure? If so, how serious of a crime would this cover? How long should this immunity last for? Should everyone who faces relentless persecution be afforded similar benefits?
I think the answer is ‘if you’re going after trump, maybe you should go after one of the dozen odd similarly ranking officials who has also done this same thing, instead of just the main general election opponent for the sitting president who both has a 38% approval rating and who is one of those dozen’.
In general I don’t think democrats should be prosecuting republicans for this kind of thing, and Vice versa(that is, things politicians do all the time and usually don’t get prosecuted for). But I suppose bipartisan investment in good governance is too much to ask.
I personally would be in favor of far less apprehension with prosecuting government officials. If we assume that Clinton, Biden, etc. all get prosecuted for mishandling records with a similar zeal, how much of an effect would it have in mollifying those that believe Trump is the victim of unwarranted legal action?
I think that's the end result of what's happening now -- if someone isn't willing to indict Biden (and/or Newsom, and whatever) in the next six years, grassroots Republicans will find someone nutty enough to do so, whether or not the law supports that particular matter. It's possible that this turns out to be a sword that doesn't cut both ways, but if so, they're going to go up a rung and chop out sections of the FBI or DoJ until it happens. There's ways you can separate each and every other big-wig politician or politically-connected actor who violated the law and got off scot free, but there's few ways to do so and not seem post-hoc justifications -- and it's far too dangerous a tool to be only available to one team.
And I think that would mollify conservatives, if not necessarily as many Trumpists.
Of course, the flip side is that it'd be extraordinarily bad on its own merits. Even the steelman of 'just' going after 'genuine' cases will result in federal officials facing a barrage of 1983 suits, but conservatives have fifteen or twenty years of genuine or imagined overlooked misbehavior to bring forward.
And how are they going to do that with the Democrats in control of the Deep State and the presidency? This is the endgame; the Democrats aren't worried about tit-for-tat because they don't intend to relinquish power again.
Naively, there's a chance people will recognize the tooling; politics is at least theoretically anti-inductive. To an extent, this is currently one of Trump's biggest selling points, damning with faint praise as that might be. Given past events, I'm not that optimistic.
More pessimistically... there was a case in the late 90s where a federal agent shot an unarmed woman holding a baby. That case was somewhat complicated over past Supremacy Clause questions over where a federal officer's official processes start and where reasonable behavior ends. But states do not have to limit themselves to good, fair, or honest laws, that a federal employee might only violate when taking their duty to its most extreme edges.
States just don't do that, and that's why you've not heard much about the few cases that even started. And the feds can put the pressures in; the Clinton-era fed put a lot of pressure to get Lon Horuchi's prosecutor limited as much as possible. It's even possible that federal judges will quickly develop new immunities or theories of impossible requirements of standing. But taking it off the table entirely as a threat requires taking every state, not just the federal gov.
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