The simple fact is that President Biden’s Department of Justice is prosecuting Donald Trump – at a time when Trump is roughly certain to lock up the GOP nomination and face President Biden in the general election.
Is the prosecution’s motivation political? Well, whether the prosecution is or is not political, it appears political – which threatens to deeply harm our political and legal system.
The prosecution offers a lose-lose outcome
“It may be satisfying now to see the special counsel Jack Smith indict Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election,” law professor Jack Goldsmith wrote. “But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation.”
The harms Goldsmith describes will occur regardless of the prosecution’s outcome. Think about it. If the prosecution fails it will appear as though the DOJ brought forth a weak case, against Biden’s opponent, during the middle of a presidential election. Now imagine if the prosecution fails and Trump loses the election. It will appear as though Trump lost the election because of the prosecution, which then turned out to be BS. How do you think that’s going to go down.
And then of course there’s the possibility that the prosecution succeeds – meaning Biden will have successfully prosecuted his chief political rival in the middle of (or directly after) a presidential campaign. That won’t go down well, either.
“This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations,” Goldsmith wrote. “And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated.”
The context of the prosecution doesn’t help perceptions
The DOJ, now prosecuting Trump in the middle of a presidential election, once investigated Trump in connection to a full-blown conspiracy theory: that Trump was beholden to Russia. Further complicating matters, the Trump-Russia conspiracies stemmed from Hillary Clinton campaign opposition research – meaning Trump has already DOJ actions that originated in the shop of Trump’s presidential opponent.
Compounding the perception that Trump is being prosecuted for political reasons, is the recent DOJ handling of first son Hunter Biden.
“Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it,” Goldsmith wrote. “And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.”
“These are not whataboutism points,” Goldsmith continued. “They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether his prosecution is seen as politically biased.”
The result of all this: the reputation of the DOJ could be irreversibly damaged; investigations (often petulant) of presidential actions will increase; and “it may also exacerbate the criminalization of politics.”
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.