By STEPHEN M. KRASON
The legal turmoil that we are witnessing concerning the indictments of Donald Trump — one after another, it seems — is, in my judgment, the most serious political and governmental crisis in most of our lifetimes, easily outstripping Watergate. Not only are the charges made against him an apparent stretch of the law, but in some cases a seeming manufacturing of law. I have written previously in this column of how the left in America does not seem so committed to the rule of law, which is a bedrock principle of our democratic republic.
The Trump prosecutions seem to be outrightly illustrative of that. A political motivation — at least in part — for the prosecutions is suggested not just by these realities, but by the fact that the prosecutors have waited until now or just recent months, as the 2024 presidential campaign heats up, to move against Trump. This is so, as Trump has said, even though his words and actions — which are the subject of the prosecutions — have been public knowledge for a few years.
There are no Republicans among the leading prosecutors in the cases against Trump (special prosecutor Smith is an independent, but his wife is a Democrat who contributed to the 2020 Biden campaign and made a film about Michelle Obama). Also, some of these charges — which concern Trump’s statements — raise serious First Amendment issues.
As far as his statements and actions on January 6, 2021, are concerned, it is clear that he did not tell the crowd to go and storm the Capitol Building, but to peacefully let their views be heard. Questions are raised about special prosecutor Smith’s objectivity when one sees that in documents that he filed with the court, he omitted the part of Trump’s statement that made this clear. Smith, by the way, has had several attempts at prosecuting public figures — both Democrats and Republicans — either end in mistrials or overturned on appeal. In one case where he secured a conviction against a Republican congressman there were serious questions of prosecutorial misconduct, which led President Trump to issue a pardon.
The actions of Smith and Manhattan District Attorney Bragg bring to light a larger problem in the American criminal justice system, which was written about so persuasively over two decades ago by Paul Craig Roberts and Lawrence M. Stratton in their book The Tyranny of Good Intentions. That is prosecutorial overreach and abuse. Now that we are seeing a former U.S. president being victimized by it maybe in the future the public and at least some of our decision-makers will see the need to do something about it.
A further challenge to the rule of law is seen with the federal judge who will be hearing the prosecution against Trump in the District of Columbia. Judge Tanya Chutkan was appointed by President Obama and donated to at least his first presidential campaign. One wonders if the special prosecutor did “judge-shopping” — as prosecutors are sometimes known to do — using contacts and connections to steer the case to this particular judge. It has also come out that Chutkan was with a law firm, before her appointment to the bench, that represented Hunter Biden in his contacts with foreign businesses that are now under scrutiny for corruption and may also have involved his father. Also, she was employed at the law firm for part of the time that Hunter Biden worked there.
These facts would seem to indicate that the judge should recuse herself. Chutkan has shown no willingness to do that, however. She is also known for imposing sentences harsher than even prosecutors have asked for. Could it be that special prosecutor Smith sought her out to “sock it” to Trump?
Then there’s the question of the connection of Trump’s prosecution with the Hunter Biden affair. Is the timing of the Trump prosecution connected with the emerging evidence of President Biden’s involvement with his son’s illegal foreign business transactions to divert attention from this? There are also mixed views from authorities about whether the penalty that Hunter Biden received for his federal income tax and gun charges was as serious as what others would receive or merely a slap on the wrist.
A major part of what Trump is being prosecuted for concerns his attempts to have the 2020 election results investigated and, if merited, overturned in some states. This is because there were genuine questions of irregularities and problematical actions — some possibly contrary to law — taken regarding election procedures that could have influenced the outcome and so who would win the electoral votes in some states. It is even further troubling that in some states Democratic attorneys general have begun to prosecute Republican Party officials and potential alternative electors.
Each party assembles its slate of electors before they meet in their respective state capital in December after the election to cast their votes. It is generally expected that the electors will cast their votes for whichever candidate won the popular vote plurality in their state, but the Constitution does not require this. Occasionally, we have heard of “faithless” electors who vote for another candidate. In 2020, the Supreme Court held that states could require their electors to vote in accordance with their state’s popular vote, although it’s not so clear if a state can criminally prosecute them for not doing so.
Frankly, I find the Court’s decision to be constitutionally troubling, since the Constitution does not even require that there be a popular vote for president. In the first few presidential elections, the electors were appointed by state legislatures. It’s generally a political party’s fault if any of their electors — since in most states the party assembles its slate of electors — don’t vote for their party’s candidate if he won the popular vote. They must be sure to put completely committed party supporters on their slate of electors. What specifically happened in 2020 was that in states where Trump apparently lost but he and Republican leaders thought there was evidence of voting irregularities that could have changed the outcome, they proposed an alternative slate of electors to the Democratic slate and sought to have these viewed as the valid electors by Congress on January 6.
The Democratic state attorneys general are claiming that this was criminal fraud. Such a claim is perhaps historically unprecedented. Instead of criminal prosecutions of these “fake electors,” there should have been a thoroughgoing examination of the contested results in the states in question.
Another outrageous action of special prosecutor Smith is his alleging that Trump had “co-conspirators,” which included Trump’s attorneys such as former New York City Mayor Rudy Giuliani, for advising him as they did about how to legally counter the questionable election results because of the apparent irregularities. This seems to be an assault on the legal rules about attorney-client privilege.
One wonders, if the prosecutions of Trump by special prosecutor Smith and by District Attorney Willis of Fulton County Georgia are successful, if in the future any losing candidate who raises questions about voting irregularities or contacts officials in his party in a state about challenging results is going to face criminal indictment. That would have the effect of opening the door in a major way to election rigging and fraud. Some very bad precedents, then, can come out of these cases.
Most of charges in the Trump prosecutions come out of disputes about the 2020 election and the events of January 6, which were themselves prompted — not by Trump’s wanting to hold onto power and subvert constitutional government, as some leftists contend — but by the serious questions about the irregularities and alleged voting law violations in the 2020 election. It is disappointing that the Democratic Party — I’m sure it would be the case with many Republicans, as well — was not willing to have those issues seriously looked at, to be sure that their candidate had won fairly.
One is struck by how very, very few prominent Democrats are willing to deviate from the “party line” not just on this, but on many important public issues. Ideological purity and maintaining political power seem to be their utter imperatives. Having followed American politics for over half a century and taught it at the university level for over three and a-half decades, I have never seen such an apparent lack of debate within party ranks and, more critically, a complete disregard of integrity in the interest of party solidarity.
Maybe what is needed to secure as much as possible the truth about the events connected with the 2020 election and its aftermath and to set the historical record straight is an independent commission of some kind to carefully examine them. Such a commission, of course, should have Democrats, Republicans, and independents on it — probably non-officeholders. The people on it should be known for their integrity and objectivity.
Harvard Law Professor Emeritus Alan Dershowitz would be a very good choice; maybe he should be its chairman. He is a Democrat and has said he voted for Hillary Clinton against Trump in 2016 and probably voted for Biden in 2020. Former Democratic Cong. Tulsi Gabbard, who ran in the Democratic presidential primaries in 2020, but now has left Congress and the Democratic Party and become an independent, would be another good choice. She has been known for her independence of thought.
Lawrence Stratton, mentioned above, who’s a lawyer and professor, would be another good choice.
As far as the matter of criminal prosecutions seeming to grow out of political differences are concerned, this is something we should be very troubled about — especially if, for whatever reasons, any of the charges against Trump result in a conviction. If a former president and the front-running candidate for his party’s nomination for the next presidential election can be targeted on the basis of such weak grounds, we can expect local, state, and federal prosecutors in the future to be emboldened — as others have also warned — to go after people for disagreeing with them or their party or ideology.
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