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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 happen to think that indicting potential candidates creates a slippery slope unless the charges are very serious, and that these particular charges do not seem to clear that bar (though I suppose it might depend on the contents of the specific documents in question).
That being said, the selective enforcement argument does not seem to be very persuasive, because there are are at least two elements to a violation of 18 USC sec 793(e): 1) unauthorized possession of national security documents; and 2) willful retention or the documents and failure deliver it to the officer or employee of the United States entitled to receive it. There is evidence that Trump, unlike the others you mention, willfully retained the documents and failed to deliver them when the government requested them. Hence, while there is evidence that Trump violated 18 USC sec 793(e), there is no evidence that the others violated the law.
Moreover, when James Comey declined to recommend the prosecution of Hillary Clinton, he said:
Again, there is evidence of several of those criteria re Trump (indeed, he is charged with obstruction of justice), but not re the others.
Hence, if the decisions were completely objective, the pattern of decisions would look the same. Hence, the pattern you identify is not evidence of subjective prosecution.
To provide a further excellent piece of evidence, let’s ask Bill Barr, former Attorney General FOR TRUMP, who has decried other efforts as “witch hunts”.
Source
I think that’s pretty telling that Barr also claims Trump is doing unprecedented and serious things. This is not some partisan hack. It is someone republicans trusted to run the entire Justice department. And he agrees with the charges!
Where did he say unprecedented? He said he was wrong here. Whatever you quoted doesn’t match your take.
He said Trump was wrong. He also said and I quote from earlier in the article, “almost anyone else in the country would have returned the documents if asked”.
Sure the word unprecedented doesn’t specifically appear. But in terms of Trump scandals, from media hype to legitimate offenses, it’s clear Barr is saying that this particular scandal is far worse than any other that he witnessed. That’s along the same lines (no cross party comparison is directly made however).
So it doesn’t say what you said and the obvious rejoinder is Hillary. I’m sure Barr is aware of that example so citing him for something he didn’t say isn’t appropriate.
I think you’re being pedantic and uncharitable. It is unprecedented for Trump himself to be in the wrong, per Barr. But that’s a hang up that you’re focusing on while missing the point, which is that Hillary or anyone else is an irrelevant distraction. The substance is: the fact that Barr calls this lawsuit out as different than past (alleged) “phony claims” is pretty telling. We should therefore be paying close attention to the indictment and resist the urge to write it off as yet another exercise in partisan hackery/deep state persecution. Because here we have an ardent Trump defender and an unquestionably experienced legal leader admitting Trump is in the wrong. Isn’t that enough to take it seriously? It should be viewed more or less on par with Jan 6th, or more seriously, because the wagons that you’d expect to circle aren’t actually circling.
No. Most people seem to think “Trump legally is in a bad spot.” The issue many have is unequal treatment of the law. That is Democrats get treatment A; Republicans (or Trump) gets treatment B. Saying “it is unprecedented” is a comparison to others; not to Trump himself.
And yes, unequal treatment is a huge problem.
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