What constitutes a politicized prosecution is generally a matter of opinion. What seemed definitely different about the recent indictment of former President Donald Trump is that a state prosecutor brought the charges.
Legal experts differ as to whether the Trump case brought by Manhattan District Attorney Alvin Bragg, a Democrat, will unleash more local prosecutors to find creative jurisdictional arguments to target federal officials who don’t agree with them politically.
“That’s mostly speculative. I don’t see a lot of meat to this blowing up,” Paul Kamenar, counsel to the National Legal and Policy Center, a government watchdog, told The Daily Signal.
“We have seen at the state attorney general level a series of lawsuits from conservatives challenging Biden administration policies. Nothing new there,” Kamenar said. “What’s different with Bragg is bootstrapping a state law to a federal law—in this case, an alleged campaign finance violation—to charge a federal official. [Other] prosecutors may have trouble doing that.”
Bragg’s grand jury indicted Trump on 34 felony counts of falsifying business records regarding supposed hush money payments to porn star Stormy Daniels. Among other things, the indictment alleges Trump was seeking to cover up a potential federal campaign finance violation.
However, both the Justice Department and Federal Election Commission earlier dismissed the payments as a campaign finance matter.
“It is long past time for Republican state attorneys general, Republican DAs, and Republican prosecutors to get creative in charging Democrats for actual crimes and giving them a healthy dose of their own medicine,” said Mike Davis, president of the Article III Project and former chief counsel for nominations to the Senate Judiciary Committee.
“Two wrongs don’t make a right, but it does make it even,” Davis told The Daily Signal. “Democrats crossed the Rubicon. The only way to save the country is to give them a taste of their own medicine.”
One former federal prosecutor, Ankush Khardori, recently wrote in an op-ed in The New York Times warning Democrats against cheering Bragg’s move.
“Mr. Bragg may have been the first local prosecutor to do it, but he will probably not be the last,” Khardori wrote. “Every local prosecutor in the country will now feel that he or she has free rein to criminally investigate and prosecute presidents after they leave office.”
Khardori noted Republican eagerness to investigate the business dealings of family members of President Joe Biden, writing:
Delaware is a solidly Democratic state, so that particular possibility seems unlikely, but elected prosecutors in large Republican locales could find similarly creative ways to target the family of a Democratic president, particularly if the president, his spouse, or another family member has national or international business and financial dealings in the state.
Florida and Texas, for instance, have broad criminal laws on the books that prohibit forms of financial and business improprieties, including criminal fraud statutes that a prosecutor could claim were violated if there is even a suggestion that a president misled someone in the state during a financial transaction or that a president used a financial institution in the state for some questionable dealing.
In other commentary, Newsweek opinion editor Josh Hammer, also a lawyer, recently wrote of the Trump indictment: “There is simply no choice but for the Right, and for Republican prosecutors in deep-red jurisdictions across the country, to prudentially and reasonably respond in kind, upping the ante further in the short- to mid-term in an attempt to ultimately deescalate toward a long-term ‘mutually assured destruction’ footing.”
Local prosecutors taking action against national political figures isn’t a bad thing, so long as charges are legitimate, said former Connecticut state prosecutor Mike Lawlor, who served nearly 25 years in the state’s House of Representatives as a Democrat before teaching criminal justice at the University of New Haven.
“If someone commits a crime in the jurisdiction where you are a prosecutor, it is not unique to bring a case,” Lawlor told The Daily Signal. “If Hunter Biden committed a crime in a prosecutor’s jurisdiction, why wouldn’t a prosecutor bring the case?”
Lawlor added that he doesn’t find Bragg’s prosecution of Trump unusual.
“To me, it’s a routine prosecution with an unusual defendant,” Lawlor said. “There are members of Congress who have been prosecuted by local prosecutors.”
The most famous such case might have been the so-called Chappaquiddick incident, when Sen. Ted Kennedy, D-Mass., pleaded guilty in a state court to leaving the scene of an accident and received a suspended sentence of two months after driving his car into a pond, killing passenger Mary Jo Kopechne, in 1969.
In another case, in 2003, Rep. Bill Janklow, R-S.D., was convicted in a South Dakota court for manslaughter after running a red light and killing a motorcyclist in the resulting crash. He was sentenced to 100 days in county jail and three years’ probation.
Whether Bragg’s charges against Trump will embolden other local prosecutors to target former presidents is difficult to tell, said Charles “Cully” Stimson, a former federal prosecutor in the District of Columbia, California, and Maryland who serves as deputy director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. (Heritage is the parent organization of The Daily Signal.)
Stimson noted that the nation has 2,300 county prosecutors.
“As a practical matter, most wouldn’t even have jurisdiction to charge him with anything in their county because the former president didn’t visit, do business, or have any contact with that county (there are 3,143),” Stimson said in a written statement.
“Prosecutors, at the state and federal level, should only charge people with crimes when there is probable cause to believe an actual crime has been committed,” he wrote, “and only when they have a reasonable likelihood of success on the merits—THE standard that applies to all prosecutors.”
Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal. Lucas is also the author of “The Myth of Voter Suppression: The Left’s Assault on Clean Elections.” This first appeared in the Daily Signal.