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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.
Ted Stevens is an awkward example, because there's a lot of pretty good evidence that he didn't do it: the prosecution's case depended on the claim a contractor was underbilling him, and that contractor said in an interview with the FBI (concealed from the defense) that work was worth at most a third of the government's estimate, that the whole house wasn't worth the government's estimate, and that the contractor had refused to send bills to Stevens when Stevens had asked, while prosecutors either stood by without correcting or suborned perjury.
My point isn't that the prosecutors were Bad People, though I think they were. My bigger objection is that Stevens quite probably was innocent, and more likely than not well in compliance with the spirit of the law, rather than skirting on the edges. Even presuming that the appropriate level of prosecutor misconduct or prosecution of a marginal case isn't zero, it seems like there's a lot more low-hanging fruit than one where suborned perjury resulted in an innocent man being found guilty.
I think Gillum and McDonnell cases are lower-hanging fruit from a rhetorical perspective, in that it's pretty clear that they did the things, that the behavior was intended to fall in the bounds of the law, and it's mostly a matter of whether they had sufficient cutouts (for Gillum) or where the law was written specifically enough to cover the bad behavior (McDonnell). BridgeGate is more difficult, since the behavior by Kelly and Baroni were definitely Bad Things, and they should be illegal, but the wire fraud statute was a really stupid approach to try and go after them.
There's a lot of stuff like this, and it's far broader (and often worse!) than mere corruption.
I just don't think, given the available evidence, that Stevens was in that set. The law clearly prohibited what he was alleged to have done -- there's a reason he and the Bridge to Nowhere were a staple reference from the (GOP-leaning!) Porkbusters set until the second shoe dropped -- it's just that the government had very strong reasons to believe that he didn't do those things.
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