Jack Goldsmith, Deputy AG under George W. Bush, worries about Garland’s “using criminal process against former President Trump”. In support, he cites “sensible” commentators (George Will, Damon Linker, David Brooks) who believe that Garland “made a mistake, perhaps a disastrous one, in executing the search warrant at Mar-a-Lago”. In particular, he quotes Will’s concern with “social comity” and “domestic tranquility” [sic].
The gist of Goldsmith’s worry appears to be that a “Justice Department in an administration run by Trump’s former and probably future political opponent, uses unprecedented criminal process against Trump — especially given our cleaved politics, upcoming elections, and the well-documented mistakes and illegalities that the Justice Department and FBI committed in pursuing Trump in the past.”
Goldsmith is not alone in using “unprecedented” to describe DOJ’s move against Trump. See, for example, here and here. Even Magistrate Judge Reinhart says so. But let’s be clear: law enforcement agencies across the country routinely obtain and execute search warrants. That in this particular case the home of the search happens to belong to a former president does not make unprecedented what DOJ is doing and why.
To say so is to let Trump frame the issue. It’s true that the FBI has not previously searched the home of a former president. What makes the exercise unprecedented, though, isn’t the DOJ’s use of standard criminal processes but the former president’s conduct necessitating it. “Former President’s unprecedented refusal to return government documents compels DOJ to execute search warrant” is the more accurate — and appropriate — lede.
Goldsmith says, “Whether Garland made the right call will depend on how … serious the wrongdoing appears to the public independent of legal technicalities”. This is a strange position for a former prosecutor to take. Is Garland supposed to take the public’s temperature before executing the laws? Isn’t a prosecutor’s discretion on prosecuting (or not) unconditional? Aren’t facts, rather than political concerns, supposed to drive those decisions?
By referring to “legal technicalities,” Goldsmith also legitimizes the common Trumper complaint about “process crimes,” the jejune contention that, Yeah, that’s what the law says and, technically, it’s a crime, but not really”. This is the go-to argument of Trump supporters when reminded of his associates who are guilty of lying to the FBI. That Goldsmith, as former prosecutor, gives credence to it is, to borrow a phrase, unprecedented.
Goldsmith hints at something more disturbing when he says that, “even assuming very bad acts by Team Trump, the more unprecedented investigatory and prosecutorial steps that one administration takes in response to the acts of a prior administration, the worse”. Effectively, Trump the private citizen should be immune against criminal liability for his “very bad acts” because a Republican successor may look to prosecute Biden in revenge.
Josh Marshall challenges Goldsmith’s argument. He rightly distinguishes between prosecuting a sitting president and a former one, but then strangely departs from the is-there-evidence-of-a-crime standard by asking “whether Trump’s lawlessness is so pervasive and persistent that … immunity for past and future actions” is a greater threat than the “dangers of holding him to account”.
In response, Goldsmith offers two considerations for his hesitation to use criminal statutes to pursue Trump: (1) Uncertainty as to whether Trump did anything that rises to the level of a convictable offense; and (2) the dangers of failed prosecution of Trump. As general propositions, both are correct, but neither is unique to Trump. These are the daily concerns of prosecutors everywhere, particularly of Chickenshit Club members.
“A trial … ending in acquittal will cause the country tremendous pain for no good end and will likely create numerous unfortunate precedents along the way ….” It’s unclear what “tremendous pain” an abstract concept like “country” can feel. Certainly, some people will be delighted by the seeming affirmation that their guy is innocent, while others will be disappointed by what they see as a slipping of the noose by one who is obviously guilty.
So what? Statistically, there are far more convictions than acquittals. The latter are a risk in any prosecution, but they’ve never stopped the grinding gears of the criminal justice system. Goldsmith’s special concern for prosecution of a former president, even for crimes committed after his time in office, is based solely on the potential political consequences of a Trump prosecution. Do we really want Garland to use that as a measure?
Per Goldsmith, we must consider how charges against Trump “would fare in an adversarial criminal proceeding administered by an independent judge, where [Trump] will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.” Again, how does this differ from what all criminal defendants have the right to do?
Goldsmith argues that a failed prosecution would create “incentives” for Trump “and [unspecified] others,” and have a “devastating impact” on DOJ’s “legitimacy”. How so? Assuming DOJ’s case against Trump is not contrived — there is zero evidence that it is — wouldn’t a prosecution, especially an unsuccessful one, affirm that legitimacy and the principle that no one is above the law?
It is Goldsmith’s worries that undermine the criminal justice system’s legitimacy, for they are unique to the identity of the defendant, an ex-president. Goldsmith cannot deny that many prosecutions of “normal” criminals are based on evidence far more circumstantial than what the FBI has on Trump. That’s still is no guarantee of a conviction, of course, but if Trump secured an acquittal, it would confirm that criminal justice performed as it was supposed to.
What Goldsmith and those who agree with him don’t address is the toxic consequences of not prosecuting wrongdoing by the single person with the most power. Quick to point to “incentives” arising out of an acquittal, they say nothing about incentives that come with the loud-and-clear message that attaches to a refusal to prosecute, not because there is no evidence, but because a portion of the public might be unhappy.
There are clear signs Garland is true to his word: it will be the facts that decide. The sooner Garland treats Trump like any other citizen suspected of criminal acts the better. What Republicans make of that is of no import. With only the fewest exceptions, they’ve consistently aided and abetted and excused Trump. Neither they nor Goldsmith have offered a legal basis for the proposition that an ex-president cannot be prosecuted.
