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Perspective: What speed limits and the Mar-a-Largo search have in common

It’s not written laws, but unwritten ones, that may determine whether Donald Trump is prosecuted

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This is an aerial view of former President Donald Trump’s Mar-a-Lago club in Palm Beach, Fla., Wednesday Aug. 31, 2022.

This is an aerial view of former President Donald Trump’s Mar-a-Lago club in Palm Beach, Fla., Wednesday Aug. 31, 2022. The Justice Department says classified documents were “likely concealed and removed” from Trump’s Florida estate as part of an effort to obstruct the federal investigation into the discovery of the government records.

Steve Helber, Associated Press

The debate about the Mar-a-Lago search has me thinking about speeding tickets in Germany.

As a young missionary, I learned the hard way that German speed limits were enforced by machine — by a “blitzbox,” as we called it.

One day, I was motoring along some country road in western Brandenburg, enjoying the sun and the trees and the awesome power of my three-cylinder Opel Corsa, and then — flash! — a blitzbox noticed me having too much fun and took my picture. A few weeks later, I got a letter from the mission office forwarding my ticket and the information for paying or disputing my fine.

There was no chat with a friendly officer, no chance to smile and wheedle and explain, no looking innocent and hoping to get off with a warning. (Also, no inconvenience of needing to stop, and no fear that the officer might think I was armed.) I broke the law and I paid the penalty, and that was all there was to it.

After I got home to Utah, I met a young woman who bragged about rescuing people from speeding tickets. She said that when she saw someone about to get pulled over, she’d speed past the car, get herself pulled over instead, and talk her way out of it.

In Germany she’d have needed a new hobby.

The late Bill Stuntz of Harvard Law School argued that the American treatment of speed limits illustrated a flaw in our criminal justice system as a whole. We write the speed limit laws as if we’re setting maximum speeds, but then we treat them like minimum speeds. Few drivers stay under the limits, and those who do it can expect angry glares or rude gestures.

So who sets the real speed limit, Stuntz asked: Who is it that decides “the velocity above which drivers risk traffic tickets or worse?”

His answer: “Whatever police force patrols the relevant road. Law enforcers — state troopers and local cops — define the laws they enforce.”

Lots of laws function the same way. It’s illegal, for example, to buy a gun and give it to a felon, but prosecutors will probably ignore it unless you’re doing it for organized crime. It’s illegal to possess marijuana anywhere in the United States, but whether you’ll be prosecuted depends on the amount of weed, what you plan to do with it, which state you’re in, and who’s in the White House.

If you think police and prosecutors shouldn’t approach their jobs this way, ask yourself: What else are they supposed to do? Enforce all the laws, all the time, against everyone?

Good luck with that. You can’t enforce all the laws when nobody even knows how many there are. People have tried to count, just at the federal level, and found thousands of federal criminal statutes and hundreds of thousands of criminally enforceable regulations.

There’s a Twitter account that used to tweet one federal crime per day, real but often ridiculous crimes like putting furniture in a post office parking lot or impersonating Smokey Bear. The guy kept it up for years and even wrote a book about it, but he ran out of steam long before he hit the 1% mark.

Civil rights lawyer Harvey Silvergate claims that on the average day, the average American commits three federal felonies.

Stuntz called this “the rule of too much law,” a situation in which no one can be perfectly law-abiding and everyone can be prosecuted for something if some prosecutor looks hard enough. Our laws do not warn us which conduct will be punished. Instead the laws “define a menu of options for police officers and prosecutors to use as they see fit” —options for punishing whatever people they think need punishing, for whatever reason.

Still, nobody wants to believe these things are entirely up to law enforcement, not even the law enforcers themselves, and so we end up with unwritten laws that determine when the written ones are going to apply. We speed — but only by single-digit miles per hour, or only on certain roads, or only in good traffic and good weather. We know the officers won’t stop us for doing five over — unless they think we’re carrying drugs, or maybe texting from the driver’s seat.

And that brings me back to the debate over the FBI search of former President Donald Trump’s Florida estate.

It’s interesting: nearly everyone, on every side, seems to assume that some unwritten rule ought to apply. Some people think the rule is “Don’t search former presidents’ homes,” except in very special circumstances that either did or didn’t exist here, depending on whom you ask.

Other people think we should follow the Clinton/Comey rule: “Don’t prosecute important people for mishandling classified documents unless …” — and then they add a string of conditions that aren’t actually part of the law the important person violated.

The Clinton/Comey rule also comes in a what’s-good-for-the-goose flavor, under which Hillary Clinton should have been prosecuted for mishandling classified information contained in emails — but, because Clinton wasn’t, Trump shouldn’t be either.

The problem with unwritten rules is that they’re always changing, depending on which side of them you’re on. That can be funny when you’re a pretty 20-something smiling your way out of a $100 ticket, but sometimes it’s not funny at all.

Important laws might have been broken here, the next presidential election might be at stake, and an attorney general with both political and personal reasons to dislike Trump has to make a call: Would prosecuting Trump set a dangerous precedent of persecuting political enemies? Or would failing to prosecute him set a dangerous precedent of letting ex-presidents get away with serious crimes, crimes that would send any normal person to prison?

Wouldn’t it be nice if Attorney General Merrick Garland could just point to a written law and say, “Here it is, Trump violated it (or he didn’t), and that’s the only question I need to ask.”

But he can’t do that. He leaves countless crimes unprosecuted, so if he decides to prosecute Trump, he’ll have to explain himself. He’ll have to appeal to some unwritten law, but — because it’s unwritten — it will persuade no one who doesn’t already agree with his decision. Most people will assume Trump is being prosecuted because he’s Trump, and they’ll disagree only about whether he has it coming.

Ultimately, though, the important question is not whether Trump should or shouldn’t be prosecuted under whichever unwritten rule you or I happen to find persuasive. The important question is why we run so much of our criminal justice system on unwritten rules in the first place.

If the unwritten rules can’t handle Trump’s situation fairly, then why should we trust them to handle our own?

Germany’s blitzboxes, for all the groaning they caused, did have one great comfort. If I sped past one, I got a ticket. If my companion sped past one, he got a ticket. My district leader, my mission president, a famous footballer, the mayor, a movie star, my mischievous friend rescuing less attractive speeders — if any of them sped past the blitzbox, they’d get a ticket.

Things ought to be more like that here. And hey, I hear impersonating Smokey Bear has been decriminalized. Maybe there’s hope for us yet.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.