Rough justice for Trump

CHICAGO — Now that a Manhattan jury has convicted Donald Trump of falsifying business records in order to cover up a crime – whether it is an election-related or a tax-related crime is not clear — a host of new questions arise. Will Judge Juan Merchan send the former president to jail before the election in November, and, if so, will Trump nonetheless be reelected and released? If the judge merely fines Trump or puts him on probation, what impact might that have on the outcome? Finally, will Trump get his conviction reversed on appeal? If so, what will that mean if he loses the election only after the reversal?

Many people worry that the trial may open “a new and destabilising era of American politics”, as an editorial in The Wall Street Journal puts it. The Manhattan district attorney, Alvin Bragg, concocted a complex and unintuitive legal theory that made Trump guilty of a felony for crimes that are normally misdemeanors.

Moreover, the offense did not injure anyone in any concrete way — unless you believe that pay stubs and accounting records deceived Americans into voting for a man whom they would have rejected had they known that he was a philanderer (which, of course, everyone already knew).

If Bragg can do this, surely a district attorney in Texas or Florida could bring charges against a prominent Democratic politician — or many such politicians, from presidential contenders to town councilors.     

In 1940, the great US Supreme Court justice Robert Jackson shared this concern in a well-known speech:

“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

The not-so-great Soviet secret police chief, Lavrentiy Beria, made the same point more succinctly: “Show me the man and I’ll find you the crime.”

The problem, following the Manhattan verdict, is that while numerous criminal laws have been enacted to prevent bad behaviour, they are, by necessity, written in broad terms and can be given meanings or applied in settings that no one anticipated. 

What keep prosecutors in line — what prevents them from harassing political opponents by charging them with minor or obscure crimes that no one else is prosecuted for — is a scarcity of resources and the pressure of public opinion.

At a time when many are concerned about street crime in New York, a failed prosecution against Trump could have sunk Bragg’s career.

Prosecutors are expected to focus on serious crimes that cause serious harms.

In the United States and other democracies, they often walk a tightrope when politicians are accused of breaking the law — especially in the context of campaign-finance violations, where the law is vague and often runs into First Amendment concerns.

Generally speaking, prosecutors have done a good job of avoiding the appearance (or the reality) of picking on political opponents while giving their allies a pass.

This is the equilibrium that The Wall Street Journal’s editorial board fears is about to be disrupted.

But there is also a reason for thinking that Bragg was right to bring this case, and that the verdict should be celebrated rather than deplored.

The Journal’s otherwise cogently argued editorial makes a revealing slip. After arguing that that the “conviction sets a precedent of using legal cases, no matter how sketchy, to try to knock out political opponents, including former presidents”, it notes that “Mr Trump has already vowed to return the favour”.

In fact, Trump was not merely retaliating for a norm violation by Bragg. Trump had accused his political opponents of serious crimes and threatened to order prosecutions against them long before anyone tried to prosecute him. His intended targets have included Hillary Clinton (in 2017), former FBI director James Comey (2017), Barack Obama (2020), and Joe Biden (2020).

Though prosecutors refused to launch investigations or bring indictments against these figures, Trump certainly tried to make them do so while he was in office.

The “new and destabilising era of American politics” began when Trump ran for election in 2016, not when the jury delivered its verdict against him. The fault for this era thus lies with Trump, not with Bragg.

This conviction, by sending a signal that politicians who threaten to prosecute political opponents may themselves be prosecuted, may end, rather than extend, the destabilising era.

The conviction is not exactly a vindication of the rule of law. But it is rough justice, and sometimes that is enough.

Eric Posner, a professor at the University of Chicago Law School, is the author of “ How Antitrust Failed Workers” (Oxford University Press, 2021).