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Trump’s Trial Has Already Damaged the Office of the Presidency

By JOHN YOO

May 29, 2024 2:37 PM

To limit and undo that damage and restore the rule of law, Republicans may have no choice but to respond in kind.

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Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you. In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents. A Republican DA will have to charge Hunter Biden for fraud or corruption for taking money from foreign governments. Another Republican DA will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad. Only retaliation in kind can produce the deterrence necessary to enforce a political version of mutual assured destruction; without the threat of prosecution of their own leaders, Democrats will continue to charge future Republican presidents without restraint.

Tit for tat will produce benefits beyond shoring up executive independence. While pursuing their political self-interest, Republicans will generate the greater social benefit of repairing the rule of law. Whether it results in a conviction or acquittal, the Trump trial underscores a fact not often appreciated by the public. The rule of law — in this case, the idea that like cases should be treated alike — depends today on executive leaders as much as it does on the courts. It is the executive branch of the federal government, headed by an elected president, that bears the responsibility to “take care that the laws are faithfully executed.” It is the attorneys general of the states and the elected district attorneys of cities and counties that hold the power of law enforcement. The executive branch of the federal and state governments decides whom to investigate and prosecute long before a judge ever sees the case.

As Robert Jackson, Franklin D. Roosevelt’s attorney general and later Supreme Court justice declared in a speech that is still considered the greatest statement of prosecutorial ethics, “the prosecutor has more control over life, liberty, and reputation than any other person in America.” He or she enjoys the unchecked discretion simply to have someone investigated, which can ruin one’s reputation and destroy one’s finances. A prosecutor can present one-sided evidence to a grand jury, win an indictment, and have someone held for trial. Under the principle of prosecutorial discretion, courts do not review a prosecutor’s choice of a particular suspect for investigation or deliberate whether the government could have spent its time and resources on more deserving targets.

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https://www.nationalreview.com/2024/05/trumps-trial-has-already-damaged-the-office-of-the-presidency/