More than a year ago, a news account went public about conversations President Biden had with colleagues. He is said to have complained that the attorney general was not proactive enough to pursue President Trump’s role in the Jan. 6 incident. This is what the news outlet reported: “Biden said, ‘We don’t want Garland to act like a sour judge, but like a prosecutor trying to take decisive action on the events of January 6.’ said informally.”
While I take Mr. Biden’s words seriously that he never directly interfered with the decisions of prosecutors by the Department of Justice, I do believe that Attorney General Garland, who works for Mr. Biden, knew the president’s intentions. there is little doubt. Trump’s strong feelings when he authorized prosecution of his inexcusable but, in my opinion, constitutionally protected role in the horrific events of January 6th.
As I have been saying for years, when a leading candidate for a sitting president is prosecuted, especially at the behest of the sitting president, the case against him is bulletproof, sealed, and beyond reasonable doubt. There must be no room left. In Biden’s words, prosecutors in cases like this should behave more “like serious judges” than hard-working prosecutors. He has to lean backwards to ensure that not only is justice being done, but that it is seen as being done by all reasonable people.
The only criminal charge that meets this high bar is a Florida indictment based on a videotape in which Trump waved classified material in front of reporters but admitted that it was not declassified and remains secret. While this evidence is certainly conclusive, the crime itself is not as serious as the Jan. 6 indictment. The remaining indictments (the New York City indictment and the current Washington, D.C. indictment) are highly dubious and certainly subject to criticism from rational and objective people.
The essence of banana republics, this description applies equally to some Eastern European and Asian dictatorships, and South America, is the criminal prosecution of political opponents by incumbent leaders. We are not the Banana Republic, nor are we getting any closer to the Banana Republic. But this latest indictment, following Mr. Biden’s public demand for political opponents to be prosecuted, brings us one step closer to Bananaland.
If the shoes were the other way around, Trump would no doubt be calling for prosecution of political opponents, but two constitutional mistakes do not constitute constitutional rights. While it is true that the law must apply equally to all, it is equally true, and has always been, that the law should take into account the realities of democratic electoral systems. . Democracy itself is therefore at stake, so the current government’s bar for prosecuting political opponents, especially the strongest opposition candidates, must be considerably higher than usual.
In describing the criteria that must be adopted in such highly political cases, I have identified two criteria. The first is the “Nixon Criterion”. When President Nixon was threatened with impeachment and/or indictment for overt crimes, lawmakers from his party also joined in calling for his resignation. If Trump were arrested for offering or receiving personal bribes, I am sure many Republican lawmakers would join him in calling for prosecution. But current indictments, especially recent indictments, fall far short of Nixon’s formidable standards. (Related: Alan Dershowitz: Jack Smith’s questionable indictment isn’t the slam dunk Trump haters think it is)
Trump’s charges of possessing classified material meet the highest standards of evidence, but not those of a crime serious enough to justify an indictment during the presidential campaign. Perhaps an alternate indictment alleging that Trump ordered the destruction of the videotape met that standard, but the evidence cited in the indictment is questionable and largely based on hearsay. It seems
This will lead to the indictment on January 6th. The crime in this case is very serious, but the evidence seems to be lacking. I know of no direct eyewitness or ear testimony that could prove beyond reasonable doubt that Mr Trump himself knew and believed that the election was fair and that he lost. In fact, the evidence I know strongly suggests that Mr. Trump was completely wrong in my view that it was stolen from him. If so, any prosecution based on this indictment would not meet Nixon’s criteria. (Related: Alan Dershowitz: Trump Indictment Fails Nixon Test)
Another criterion that must be met is a question I called “What Aboutism”. It’s perfectly valid to ask, “What about Hillary Clinton?” What about Joe Biden? What about Mike Pence? They also possessed confidential documents after leaving office. Of course, there are considerable differences between these cases, especially regarding cooperation. But not cooperating is not a crime. It’s a right under the Fifth and Sixth Amendments to the Constitution.
No incumbent administration will prosecute any leading candidate for president unless there is a broad consensus among rational Americans of all parties and backgrounds that prosecution is beyond legitimate controversy. shouldn’t. In my view, none of the current indictments meet such a daunting standard.
