For all the handwringing about the fact that Donald Trump is the first president to face prosecution upon leaving office, most everybody who is aware of the facts, and even has the pretense of being intellectually honest, knows that Trump is guilty of crimes. Instead, what we are really arguing about right now is the politics of prosecuting Trump.

To be sure, there may be legal haggling over whether Alvin Bragg’s bootstrapping of a misdemeanor into a felony should pass muster (I tend to think not), or if Fani Willis’ use of RICO is appropriate, or if Trump’s attempts to overturn the election are a “criminal scheme” in the way the Department of Justice claims. He may not be guilty of each thing he’s charged with.

But at the end of the day, few people are seriously suggesting that Trump and his associates committed no crimes. The stolen classified documents case (and the related obstruction of justice charge) alone is “almost a slam dunk,” according to Sen. Bill Cassidy, R-La., a red-state Republican. Former Trump Department of Justice official Sarah Isgur called it a “textbook” indictment. Prominent legal experts are even more strongly convinced.

What most Republican defenders of the former president are really arguing is not that he’s innocent, but that prosecuting Trump sets a precedent that will be used against others.

Sen. Marco Rubio, R-Fla., who I’ve long been a fan of, gives the most straightforward version of this argument, saying on X, the platform formerly known as Twitter, “Those who decided to start using indictments, prosecutors and even mug shots as weapons in a political campaign have unleashed a destructive new era in American politics.”

It’s not a frivolous argument. As I’ve argued before, downward spirals in politics, particularly when they involve partisanship, are not only possible, but common and destructive.

The problem with this argument is twofold. One, Trump, not those prosecuting him, unleashed a new era. And two, the fact that such powers might get used against other lawbreaking politicians is not a bad thing.

Who is responsible?

Let’s dispatch with the first argument quickly. Trump’s decision to become the first president to mount an extrajudicial challenge to his defeat in 2020 is, by any reasonable measure, one of the most toxic things done in American politics in the post-Civil War era.

Trump’s team knew how dangerous it was. They floated plans to use the military to put down the inevitable violence should he remain in office under flimsy (and I’d say fraudulent) legal pretexts. In essence, they were risking a form of new civil war. Had it not been for Mike Pence’s heroism, we’d almost certainly have had at least some version of these violent events play out.

Similarly, his decision to hide extraordinarily sensitive, top-secret documents at his personal estate and engage in obviously bad-faith negotiations with the Department of Justice over these documents, is also unprecedented, dangerous and inexcusable. If this isn’t prosecutable, classified information becomes almost a pure fiction.

A former president that does such things, not only for the sake of politics but for his own personal advancement, under the implied threat that any reprisals will create a political backlash, is the one responsible for such political degradation, not the ones that take the obvious step and enforce the law.

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Reprisal prosecutions

The second argument is more complicated. Bragg and Willis are obviously politically benefiting from prosecuting Trump. Prosecution is popular with their party and their constituencies. The political calculations of Biden’s Justice Department are more complicated, but it does seem to be unlikely that these prosecutions coming down just as the election season heats up is a pure coincidence.

Whether their goal is to make Trump, who they believe to be their easiest opponent in 2024, a martyr, and thus the Republican nominee, or just to placate their base, doesn’t really matter. There is no doubt that this will create a huge incentive for Republicans to conduct reprisal prosecutions against Democrats and gone will be the argument that taking such actions are unprecedented. Indeed, prominent Republicans are already floating the idea.

But would this really be a bad thing?

Prosecutor’s cases, after all, aren’t run by the media or elections. They are tried by judges and juries. While it is certainly true that judges and juries can act in political ways, there are all kinds of safeguards and procedures to minimize politics. America is not a Third-World country, our courts are not kangaroo courts, and they don’t answer to presidents, Republicans or Democrats. While there is no perfect way to stop lawbreaking, the combination of a judge, a jury and the law is a far more reliable way to prevent lawlessness than politics.

Many of the real and perceived abuses of prosecution come from powerful prosecutors’ offices against underprivileged people. Any powerful politician will easily have the resources to fight back. Donald Trump, ostensibly a billionaire who could afford his own defense, is raising massive amounts of money off his prosecution and using PAC funds to pay for his legal defense. Frivolous prosecutions may happen, but there’s plenty of recourse if they do, and lots of reasons to think they won’t be successful, in court or in public opinion.

‘But her emails’

In 2016, the shoe was on the other foot. Then-candidate Hillary Clinton’s blatantly illegal homebrew server violated more national security and transparency laws than you can shake a stick at.

From the Department of Justice refusing to call the investigation anything but a “matter,” James Comey’s now-infamous press conference where he announced Hillary wouldn’t be charged (after Bill Clinton’s likely interference), to the political fireball of reopening the investigation due to emails found on former Congressman Anthony Weiner’s laptop, the decision not to charge Clinton was handled in a blatantly political manner. It was Trump and his supporters that were famously chanting “lock her up.”

Demagoguery aside, they were right. Hillary Clinton clearly broke numerous laws, and she was not prosecuted because of politics. It backfired quickly, and Trump won anyway. In fact, he may well have won precisely because she wasn’t prosecuted. The double standard, rightly, enraged Hillary Clinton’s critics.

So the question is, would we really have been worse off having Clinton face prosecution for her malfeasance? Would we really be worse off if Joe Biden faced the same, should the worst be shown of his dealings with his son as vice president?

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In fact, if Bill Clinton had been prosecuted for perjury and obstruction of justice after leaving office, it is likely that Hillary Clinton and Trump would have thought twice about some of their actions. At minimum, we’d have truly proven Teddy Roosevelt’s maxim that “No man is above the law, and no man is below it.”

Prosecuting our crooked politicians is not a problem. Failing to have accountability for lawbreaking, on the other hand, is a problem, a serious one. And if one act of civic hygiene leads to another, that’s a good thing, not a bad thing.

So when people claim that Trump’s prosecution will lead to more prosecution of crooked politicians on both sides, the right response is to simply to lean over and say, “Yes, your terms are acceptable.”

Cliff Smith is a lawyer and a former congressional staffer. He lives in Washington, D.C., where he works on national security related issues.

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