You don’t have to love Trump to fear a partisan US justice system – Twin Cities

After a jury in New York found former President Donald Trump guilty on 34 counts, his narrow lead over President Joe Biden in the polls has barely budged. That is, about half the country is unimpressed by their preferred candidate’s new status as a convicted felon. It may even be worse. Perhaps, some commentators believe, the convictions will boost Trump’s support by reinforcing his supporters’ belief that the country’s justice system is rigged against him and converting others to the same view.

Despite the extensive coverage, one aspect of this unfolding horror has received too little attention. Trump’s transgressions and the questionable judgment of some of his persecutors are not the whole story. These developments result in part from a systemic and specifically American vulnerability. Long before Trump took office, the U.S. criminal justice system was a disaster—a disaster—waiting to happen.

First, U.S. law enforcement relies on overtly political professionals. Prosecutors are often partisans who were elected to their positions and aspire to higher office. (The U.S. appears to be the only country in the world where citizens elect prosecutors.) Conservatives court their supporters by promising to go after repeat offenders, for example; progressives by promising to address racial injustice and end mass incarceration. So why not serve voters by promising to pursue the leader of the opposing political party and “hold him accountable” — as District Attorney Alvin Bragg did in staunchly Democratic New York?

Judges, too, are often partisan — registered Democrats or Republicans, as the case may be, and willing to support their side financially like ordinary Americans. The highest court is the most political — nominally above such considerations, but widely viewed as politically sorted, with a currently unchallenged majority of six conservatives to three liberals. Trump has repeatedly referred to his judicial appointments as “my judges.” Democrats are debating whether and how to staff the court to correct the imbalance, and in the meantime the Biden administration is undermining or ignoring the court’s rulings. Conservatives will no doubt do the same, should the need arise.

Politics puts pressure on the U.S. system in other ways. Thanks to the electoral advantages faced by state and federal legislatures, the U.S. is grossly overcriminalized. American lawmakers love to outlaw things. They disagree about which crimes are most important, but they agree that many more things should be considered crimes, and that the crimes they care about most should be punished more severely. In the U.S., the number of federal crimes (not to mention other jurisdictions) seems literally uncountable. In 1982, the Justice Department estimated there might be about 3,000 crimes. More recently, a search of the tens of thousands of pages of the U.S. code for terms like “shall be fined or imprisoned” yielded a number of over 5,000.

In 2009, Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression, published Three Felonies a Day, a slightly hysterical title but nonetheless a compelling and disturbing read. It highlighted not only the expanding universe of crimes but also the remarkable vagueness of many of the proliferating laws. (What does it mean to give “material support” to a “terrorist organization”? What exactly prohibits “honest services fraud”?)

Tim Wu of Columbia Law School, now better known as the architect of the Biden administration’s competition and antitrust blueprint, wrote about a game played by federal prosecutors in the Southern District of New York to plausibly attribute obscure crimes punishable by long prison sentences to randomly selected celebrities. Perhaps “misrepresentation of facts on the high seas.” (Five years, each count.) How about “violation of a mailbag”?

The expansion of the criminal code went hand in hand with the introduction of “strict criminal liability” – the gradual extinction of intent as a necessary condition for criminality. Newly coined crimes typically involve violations of prohibitions – malum prohibitum (wrong because it is forbidden) as opposed to malum in se (wrong in itself, such as murder or theft). There are hundreds of different crimes involving fraud and misrepresentation. They allow for the prosecution of people who have merely done the forbidden – without necessarily knowing that it was forbidden, or even harmed anyone. This underscores Silverglate’s point: in the United States, it is easy to commit crimes without realizing it.

This increase in vaguely defined crimes means that most crimes go unprosecuted. Nor is it possible. Otherwise the system would collapse. The enormous discretion of prosecutors is therefore an unavoidable feature of the system – and this discretion confers power.

Another tool gives prosecutors even more power. If they choose to take a case to trial, they can pile up numerous charges and multiple indictments (ideally with mandatory minimum sentences) to compel a confession to a lesser charge and/or the cooperation of reluctant witnesses in prosecuting other suspects. Charge stacking and coerced confessions—so-called “plea bargains”—are standard operating procedures in the United States. Nearly 98% of convictions in federal court have been based on plea bargains. In 2012, the Supreme Court declared that the U.S. criminal justice system is “for the most part a system of pleas, not a system of trials.” (This used to be a uniquely American quirk, but other countries facing similar administrative burdens in their justice systems are catching up.)

The resulting combination of unusually powerful prosecutors and unusually political prosecutors has always been fraught with risk. The danger of prosecutorial abuse of power in the normal course of the criminal justice system is, of course, important in itself; and containing it is not easy, given the way legislators legislate. But prosecutorial overreach that openly serves partisan political ends is a far greater threat. It destroys faith in the rule of law. Without it, the United States is not so much in danger of becoming a banana republic; it will be a banana republic, in fact.

In politically charged cases, prosecutors must be scrupulously fair and be perceived as such. Even the mere suspicion that they are twisting the law to weaken a political opponent is devastating. The merits of the various charges against Trump vary, but the 34 counts in New York—which fulfill a campaign promise—do indeed seem to raise suspicion. To the untrained eye, this was proudly partisan legal politics, not impartial justice. Most disturbingly, many Democrats agree with this, because Trump must be stopped at all costs. The problem is that legal politics may not stop him, and the costs of using it to do so may be even worse than its proponents realize.

Clive Crook is a columnist for Bloomberg Opinion and a member of the editorial board for economics. He was previously deputy editor of The Economist and chief Washington commentator for the Financial Times.