Do the politics of the Trump prosecutions override the administration of justice?

I don’t know Jack Smith. Still, by all accounts and by all appearances, it seems that he’d almost be willing to indict his own grandmother — if she deserved it.

If she’s guilty of a crime, particularly a heinous one, of course she should be prosecuted. And it shouldn’t matter if the public would be offended over the hideous spectacle such a prosecution (by him, in particular) might create. It’s not the job of assigned prosecutors to worry about the atmospherics, the broader considerations or even the global consequences of a prosecution that might offend the public.

The front-line prosecutor’s duty is simply to determine if the individual committed the crime and then — only then — pursue the case. Criminal conduct is criminal conduct, no matter whose; that’s what we believe at the core. The prosecutor isn’t a Lincolnesque figure, overwhelmingly troubled over whether a divisive civil war might bring the country asunder. He’s neither the president nor the attorney general. Nor is he a law enforcement official necessarily worried whether his decision is potentially bad for the nation because it may offend a large portion of the citizenry.

Nonetheless, Attorney General Merrick Garland — given the role he occupies as essentially the nation’s “minister of justice” — must indeed urgently consider the broader consequences of a prosecution and its potential impact far beyond the four corners of the courtroom. Consider, for example, the wide berth necessary for an attorney general required to approve the death penalty for the Rosenbergs; to indict Alger Hiss; to authorize a second prosecution of the acquitted Rodney King police; to approve the controversial ABSCAM prosecutions.

As Americans, then, we know that prosecutions do not exist in a sterile environment free of political consideration — or at the very least, political impact. In the instance of the United States v. Donald J. Trump, the former president’s supporters adamantly oppose “Joe Biden’s lawyer” making the decision whether to indict Trump, even from the get-go.

Understandably so. Even though the public has been repeatedly reminded that Jack Smith is an independent prosecutor, appointed by the attorney general, in our bifurcated news world, the messaging related to the prosecution repeatedly drives home the idea to much of America that Smith is “Joe’s” lawyer. And so, despite having relinquished his authority over the case, Garland is nevertheless roundly criticized for letting Smith, an independent, stoic and politically unaffiliated career prosecutor, have the independence to decide whether to pull the trigger. Damned if you do, damned if you don’t.

Still it raises a far broader question. Harvard Law Professor Jack Goldsmith argues in The New York Times that prosecuting Trump could “exacerbate the criminalization of politics,” even if Trump’s conduct may indeed warrant indictment. He argues that these prosecutions might not have occurred if the Senate had not “passed up a chance to convict Trump and bar him from future office after the House of Representatives rightly impeached him for his election shenanigans.”

In truth, though, “the Senate” didn’t pass up that chance. Senate Republicans did. Putting that aside, it still would have been appropriate, in my judgment, for (minister of justice) Garland to have allowed Trump to simply walk off “quietly” into the sunset had he been convicted by the Senate. Former President Ford’s pardon basically allowed Nixon to do just that without a prosecution (albeit amid considerable controversy).

There was great merit in allowing that result even for an ex-president widely considered guilty. And, yes, in my view, there would have been merit in Joe Biden pardoning Trump or in Garland deciding on his own to decline his prosecution if Trump were to have quietly walked away without hewing to the dangerous and false rhetoric of a stolen election. I would have wanted that, notwithstanding my views of him and his horrendous conduct, in order to allow the nation to end “the long national nightmare,” to borrow President Ford’s poignant phraseology about the Watergate conspiracy.

But Trump himself made that scenario impossible. He chose to aggressively fight the impeachment. And afterwards he has continued to publicly insist on his innocence, fulminating about having been railroaded over a stolen election. Thus, he’s a totally different animal from Nixon, who resigned from office, exercising at least some hint of remorsefulness.

So here, an independent prosecutor to whom the attorney general has relinquished the prosecution decision for all purposes has simply decided that the facts firmly justify a prosecution.

It’s not clear what further remedies Professor Goldsmith might have in mind. It seems, though, he argues without saying so: “just let Trump go altogether.” Should we, however, allow would-be malefactors on the verge of despicable criminal conduct to see no adverse criminal consequences for unambiguous wrongdoing by a former president? While Smith’s prosecution is having political fallout, wouldn’t it be terribly wrong to effectively promote lawlessness through official inaction in the face of borderline treasonous conduct by an ex-president?

And while several well-regarded conservative Federalist Society law professors now argue that insurrectionist conduct by an individual can bar him from the presidency under the Constitution, Trump hasn’t even been indicted by Smith — or, for that matter, by Atlanta District Attorney Fani Willis or New York District Attorney Alvin Bragg — for such conduct. But maybe, just maybe, even though Smith seems totally unfocused on anything but convicting a guilty man, a Trump conviction will tell his fellow Republicans and supporters that it’s time to abandon ship.

Returning to Professor Goldsmith, he is known to be a brilliant thinker. So what affirmative solution does he offer aside from an (admittedly) worrisome prosecution as the only viable remedy seemingly available to a body politic in distress over what, the professor concedes, Trump has wrought?


Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former state and federal prosecutor. He is the author of “Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.

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