Is there Anything that Can be Done To Stop Politically Motivated Prosecutions?

With the indictment of Donald Trump by the District Attorney of Manhattan, Alvin Bragg, pundits, and politicians have leapt to the former-President’s defense claiming that the charges are politically motivated. Supporters of Bragg and politicians aligned against Trump argue just as vociferously that the charges are not politically motivated and that “no one is above the law”. Most of the arguments I hear, however, are waged on talk radio and social media and provide more heat than light.

Rather than resolve whether the prosecution of Donald Trump is politically motivated, I would like to point out that it doesn’t matter if the prosecution is politically motivated. There is no rule, no constitutional norm, that requires a prosecutor to be neutral. In fact. We live in a nation with a long history of political prosecution. In fact, there are very few high-profile cases where politics do not play a role—district attorneys are political beings, and the exposure a prosecution will bring to an office and the man or woman who runs it is always a consideration.

In the same way, defendants in high profile cases frequently look beyond the judicial process itself in an effort to affect the outcome of the case. I have seen African American businessmen claim they were prosecuted because of their race and fraudsters claim they were being prosecuted because of the success of their program. Prominent Republicans and prominent Democrats always sound nearly identical when they are charged with a crime—they were doing what everyone else does and are being singled out only because of their political party.

The reality, however, is that the motivation of the prosecutor is not a consideration when it comes to considering a case. The only thing that counts is the evidence. Does the evidence prove a defendant violated all of the elements of each offense charged, or doesn’t it? That is the only question that counts.

This Nation has a Long History of Politically Motivated Prosecutions.

It should not be shocking to anyone that prosecutions are “politically motivated”. District Attorneys, States Attorneys, County Attorneys, or state prosecutors by whatever name they are called are politicians. As politicians, an elected prosecutor’s foremost concern is getting elected or re-elected or possibly moving on to higher office. A high profile provides an opportunity for the politician to demonstrate his or her value to his or her constituents and, coincidentally, get re-elected or move on to higher office. Looking objectively at Alvin Bragg and Trump’s indictment, it puts Bragg in a position to argue, if the prosecution is successful, that he stopped a corrupt and evil person from perpetuating further crimes, held a fraudster accountable, and saved the nation.

The people who complain most loudly about the indictment are people who were never going to vote for Bragg in the first place. Few people in Manhattan, or the State of New York for that matter, are going to be upset about Trump’s indictment, so that indictment, even though politically motivated, is not going to hurt Bragg. To the contrary, it is likely to enhance Bragg’s standing.

But politically motivated prosecutions are nothing new. One of the first high-profile political prosecutions in this country involved the case of United States v. Aaron Burr. Aaron Burr had been Thomas Jefferson’s running mate in the election of 1800 in a contest against John Adams and his running mate, Charles Pinckney. Jefferson and Burr won the race handily, but after the election, Burr made a claim for the presidency since he had the exact same number of electoral votes as Jefferson. Since the Electoral College was deadlocked, the election was thrown to the House of Representatives where 36 ballots were required before Thomas Jefferson gained enough votes to be President.[1]

[1] In 1804, the Twelfth Amendment of the U.S. Constitution was ratified eliminating this potential problem in the future. Now votes are cast separately for President and Vice President

Understandably, after the election, Jefferson no longer liked or trusted Burr, and in 1804, Burr was replaced as the vice-presidential candidate by George Clinton of New York. Thereafter, in a little known and little understood incident known as the “Western Conspiracy” it was alleged that Aaron Burr, working with Spanish and British authorities, sought to detach the part of the United States between the Appalachians and the Mississippi River from the United States, establishing a new country with Burr potentially at the helm. The conspiracy itself came to nothing; however, Aaron Burr was charged with treason.[2]

[2] One of the more interesting characters in this drama was James Wilkinson, the Senior General in the U.S. Army and military governor of Louisiana at the time. Wilkinson served as the primary witness against Burr, and there is evidence to suggest that Burr and Wilkinson may have been co-conspirators. Wilkinson sanitized his testimony to make himself look innocent, although, in so doing, he undermined his own credibility. Wilkinson died in 1825. In 1854, an American historian reviewing Spanish archives in Madrid discovered that Wilkinson was actually a highly paid Spanish agent working against the United States. Of course, none of this was known during Burr’s trial.

While the historical record is ambiguous on this point, there is evidence to suggest that Thomas Jefferson personally directed the prosecution of Burr, an act of political retribution. In the end, however, the prosecution of Burr failed not because of any legal principle preventing political prosecutions but rather, because there were not two witnesses who agreed on the specific acts that constituted treason.[3] Neither historians nor legal scholars appear troubled by this political prosecution.

[3] Interestingly, “Treason” is the only crime defined in the Constitution, Art. III, Sec. 3, Cl. 1. In addition to defining treason very narrowly, it also states that “[n]o Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act”.

Since that time, there have been many political trials, particularly of disfavored groups like anarchists and socialists. The first presidential candidate to be prosecuted by his opponent was not Donald Trump, as much of the conservative media reports, but rather, Eugene Debs, a former member of the Indiana Senate and Socialist candidate for President in 1904, 1908, 1912 (where he won six percent of the vote), and 1920. Because of his criticism of President Woodrow Wilson and anti-war speeches he gave, Debs was prosecuted for Sedition and sentenced to prison.

The most recent President to attempt a prosecution of a political opponent is, of course, Donald Trump. It was Trump who led chants of “lock her up”, referring to his political opponent, Hillary Clinton, and it was the Trump Justice Department that appointed two U.S. Attorneys, John Huber and John Durham, to look into various aspects of Hillary Clinton’s alleged criminal behavior. Huber was tasked with reviewing the cases involving the Clinton email scandal, the “Uranium One” conspiracy, and the corruption at the Clinton Foundation, as Trump himself spoke regularly of these “violations”. Huber, of course, found no information and closed his investigation. Durham, who was supposed to be investigating collusion between the Clinton campaign and the F.B.I., ended up prosecuting only a Clinton campaign lawyer who was subsequently acquitted.

These are only a few of the high-profile political prosecutions that have taken place in the past. There are dozens of others, and often times they involve the prosecution of people thought to be “bad” in the eyes of the press or other pressure groups.

During the “Tailhook” saga of the early 1990s, after a young female Navy officer alleged inappropriate conduct by other junior officers, the Bush Administration’s Department of Defense came down hard on the Navy as a whole. At least two admirals, the Chief of Naval Operations, who was at the Tailhook event, and the Chief of the Naval Investigative Service were relieved for cause. A number of Navy and Marine Corp aviation officers received non-judicial punishment; however, of those cases referred to trial, most, if not all, were eventually dismissed. These cases were only pursued because of pressure from certain members of Congress—the very definition of a political prosecution.

The allegation that a case is a politically motivated case is often argued to a jury, usually in conjunction with a real or imagined defense. There is, however, no constitutional right to a fair and neutral prosecutor.[4] As long as the prosecutor complies with his or her constitutionally required duties, his or her political motivation has no legal relevance to the case.

Don’t get me wrong, I wish there were such a rule.

[4] See Berger v. United States, 295 U.S. 78, 88 (1935):

The government is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Of course, this may no longer be good law. Prosecutors routinely push the boundaries as far as possible to obtain convictions. Regardless, the focus is on “…. improper methods calculated to produce a wrongful conviction…” Berger does suggest that a prosecutor must be politically neutral.

Political Influence in Criminal Investigations.

Political influence often plays a role in the way in which cases are investigated and prosecuted. Usually, it involves rich and powerful people using their influence to shut down investigations or stifle prosecutions. Jeffrey Epstein, for example, was arrested in 2005 for multiple counts of child sexual abuse. His case was eventually referred to the U.S. Attorney’s Office for the Southern District of Florida where one would have expected him to be prosecuted and receive a decade or so in prison. Instead, he received a Non-Prosecution Agreement (NPA) from the federal government in exchange for pleading to a minor state charge where he received only a minimal sentence.

Generally speaking, NPAs are unavailable to individuals and are usually reserved for major corporations who have engaged in hundreds of millions of dollars in fraud or other financial crimes—another example of the privilege afforded to wealth and power in this country. I have represented hundreds of ordinary citizens with crimes far less significant than Epstein’s, and not even once has an NPA been offered.

Of course, prosecuting a billionaire who can deploy armies of lawyers, investigators, and other experts in their defense is not an easy task. Ronan Farrow’s book Catch and Kill: Lies, Spies, and a Conspiracy to Protect Predators primarily concerns his attempts to uncover and write about Harvey Weinstein, another wealthy and powerful individual, but it discussed the extraordinary steps Weinstein, and his lawyers and investigators were willing to go to in order to protect Weinstein.

From my own personal experience, I have seen how difficult it is to prosecute powerful and connected people. An average person has tremendous difficulty paying $250,000 or even $150,000, and yet the cost to reasonably defend a white-collar case is at least twice that. When a client can afford to spend a million dollars or more, there is a lot more the defense can do, and prosecutors are aware of this fact. To a certain extent, prosecuting the rich and powerful is a bit like grabbing a rattlesnake by the tail—you may win, but you’re not going to come out of the case unscathed.

Of course, if Trump’s defense is saying that Trump is not being extended the courtesies and considerations normally afforded to someone of his station in life, then I suppose I might have to agree with them. I think of poor Ghislaine Maxwell who moved through life as Epstein’s consort, immune from the inquiries of ordinary people until Epstein committed suicide—then, all of a sudden, she is subjected to the same rough legal scrutiny one would expect a commoner to suffer.

There can be no doubt that Trump and his followers are experiencing the same sort of cognitive dissonance, to go from bathing in the adoration of millions to being treated like a common criminal.  It must be like forcing Trump to fly first class in a commercial airliner rather than allowing him to take his own private jet. It would be like asking Jeffrey Bezos to share some of his vast wealth with the employees who helped him earn it, or, God forbid, asking Elon Musk to pay the same proportional amount in income tax that a waitress or elementary school teacher pay. There are just different rules for the ultrawealthy, and Bragg is not following those rules in Trump’s case.

It is difficult to say how many people are charged with falsifying statements in the United States every year, but the number must be in the thousands. In many instances, these people are charged because the police or the prosecutor don’t like them. No one cares if their cases are politically motivated. Perhaps the Supreme Court should find a right to a fair and neutral prosecutor, but they haven’t.

The Crystal Ball and the Practice of Law.

As I thought about writing this article, I hesitated at first because so many attorneys, masquerading as “experts”, have already opined about virtually every aspect of the case. These commentaries are not in the public interest. I understand that cable news networks, talk radio, and a variety of podcasters need lawyers to say outrageous things for ratings purposes, but I wish they would stop. There are serious aspects of Trump’s case that require thoughtful analysis, but no one has a crystal ball. No one can predict the future. Heck, even in my own cases, I often can’t predict what will happen before the jury returns its verdict, and I am a pretty good lawyer.

I have looked at the indictment and the facts accompanying the indictment and conducted a modest amount of research, and from what I can see, these charges are serious charges. There are also several defenses that the former-President can raise. However, no one has seen any of the State’s discovery yet, and it would be premature to discuss the evidence before it has even been disclosed. If commentators could wait until the evidence has been provided before jumping to conclusions concerning where it all leads, this nation would be far better off.