As America’s attention turns to November’s presidential election between Kamala Harris and Donald Trump, the prosecutions of the former president have been all but forgotten. But Democrats hope that Ms Harris’s previous role as a district attorney may help jog memories and persuade some crucial swing voters to ditch the felon for the prosecutor. Will it work? Or has the failed assassination attempt against Mr Trump retroactively mythologised the sputtering prosecutions as Stations of the Cross on the way to his near-martyrdom?
The prosecutions have, so far, failed to hurt Mr Trump’s re-election campaign. The prosecution for mishandling confidential documents, filed on June 8, 2023, by Special Counsel Jack Smith, got bogged down as the presiding judge, Aileen Cannon, held hearing after hearing on frequently frivolous motions, before finally dismissing the case on the grounds that Mr Smith’s appointment was unconstitutional.
The only successful prosecution so far was New York District Attorney Alvin Bragg’s fraud case, which resulted in Mr Trump’s conviction for falsifying business records, apparently to conceal hush-money payments to an adult-film actress. Ironically, this was the weakest of the four cases, and the least likely to result in jail time or any other serious penalty. Finally, there was also the failed attempt to keep Mr Trump off the ballot based on the Constitution’s insurrection clause – an argument that all nine Supreme Court justices rejected. All this has provided Republicans with the potent political argument that Mr Trump’s opponents have abused the legal system to harass him because they can’t beat him fairly in the upcoming election.
The reality is more complicated, of course. Mr Trump all but begged Smith to bring the confidential documents case by refusing to turn over the documents when requested. The chaos of January 6, 2021, has led to hundreds of legitimate prosecutions of rioters, and Mr Trump can certainly be held morally responsible for the deaths and injuries on that day, whether or not he actually violated the law. Moreover, Mr Smith was unlucky in his draw of Judge Cannon, who at best can be described as excessively cautious, and at worst out of her depth or possibly even biased in favour of Trump, who appointed her.
It is still possible that Mr Trump could end up in jail. If he loses the election, proceedings in the remaining three cases will lurch forward. But the prosecutions appear to have improved his electoral prospects, and if he defeats Ms Harris, they will surely be terminated or suspended because of the difficulties of prosecuting a sitting president. Much of this could have been (and was) predicted. But there are still some lessons to be learned. The standard concern about prosecutions of political officials is that they can set off an endless round of retaliatory prosecutions.
This type of tit-for-tat reprisal, which could spread to the states, would further inflame US politics and potentially lead presidents and other government officials to scheme to stay in power rather than take the risk of being prosecuted if they step down voluntarily after losing an election. That would be the end of American democracy. According to this theory, constitutional democracy has survived precisely because the political class has resisted the temptation to launch political prosecutions.
The problem with this view, of course, is that Mr Trump violated the norm against political prosecution long before Democrats got around to it. Back in 2016, he promised to indict Hillary Clinton; and since then – both in and out of office, and before and after his own indictments – he has threatened to order prosecutions of a litany of political opponents and even supporters who he believes have betrayed him. But there is another, better way to look at it all. The cases against Mr Trump merely illustrate that trials of political opponents are exceedingly risky in a democratic country, because the defendants can always turn the tables and accuse the prosecutors of abusing the legal system for their own political reasons.
The writer is a professor at the University of Chicago Law School. ©Project Syndicate, 2024
First Published: Aug 02 2024 | 11:41 PM IST