The recent decision by a New York jury to convict Donald Trump of 34 felony counts opens new vistas for American politics. For one thing, the convictions reshape the 2024 presidential race by offering moderates a clear signal of the Trump campaign’s venality. For another, the New York prosecution may help trigger a new season of indicting political opponents.
In the hours and days after the conviction, many Republicans picked up Trump’s unfounded, even slanderous, accusations against the prosecutor, the trial judge and his family. The inevitable next step, heard before and after the verdict, involved calls for the weaponisation of criminal law through “revenge prosecutions” against Democrats. Among those making such calls are scholars from prestigious law schools, lending them more weight and authority among the public.
Those calls are plainly in bad faith. Many of those decrying the Trump verdict today were quiescent when the former president tried to wield the power of the Justice Department against federal officials who’d investigated him before. They are, at best, fair-weather friends to the rule of law. And talk of an unfair trial, or a prosecution driven by the Biden White House, have no foundation in fact. The Biden Justice Department is instead pressing criminal charges now against the president’s son, a Democratic senator and a Democratic House representative. Those complaining about a politicised justice system must be shutting their eyes to the actual cases filed to make their claim of bias.
Baseless as they are, these calls pose a clear and present danger to the rule of law. Despite Trump’s efforts to thwart special counsel investigations, and use the Justice Department to overthrow the 2020 election, American criminal justice institutions have resisted becoming merely crude tools for partisan recriminations until now. Even though, unlike the Crown Prosecution Service, they have few structural safeguards, and instead are highly vulnerable to partisan distortion.
The structure of the American criminal justice system is split between the national government and the 50 states. Each state has its own criminal code and its own prosecutorial service headed by an attorney general, or AG. Forty-three states have elections for that AG position. In 27, the AG is identified as a Republican. The office provides such opportunity for grandstanding and high-profile press conferences that it’s a common joke that “AG” is really short for “aspiring governor.”
Within each state, moreover, there are tens or even hundreds more local prosecutors acutely attuned to the beliefs of their voting publics. In 45 states, prosecutors are elected for each city or county. These elections are not sleepy affairs. In big counties and cities, with populations of over a million, prosecutor elections are contested—as opposed to being single-horse races—two out of every three times. Both local and state prosecutors have wide discretion about when to bring charges, and against whom.
Given the rage within the Republican rank-and-file about Trump’s conviction, many red-state prosecutors will face powerful incentives to “weaponise” criminal law against local or national politicians they don’t like, as a simple matter of electoral politics. Most American states use a system of party-specific primary, by which each party’s candidates are picked, followed by general elections in which those candidates compete.
Since the rise of the Tea Party on the American right, it has become ever more common for incumbent politicians in safe red seats to be challenged from the right by more extreme candidates who can appeal to the party base (if not the median voter). There’s every reason to expect this to happen with prosecutors. For it is increasingly an article of Republican faith that the Trump trial was biased, and that tit-for-tat prosecutions should follow. The fallacy of these claims about the New York trial, like the fallacy of claims about a “stolen election” in 2020, will not for a second slow their diffusion.
Matters are not much better at the national level. The Department of Justice’s independence from the White House is shielded by policy as well as by norms. But, as Trump demonstrated during his stint in the Oval Office, those norms can be collapsed if you are sufficiently unscrupulous.
Does that make the New York prosecution of Trump a mistake? Does it undercut the other prosecutions for his alleged involvement in stoking the Capitol riot, conspiring to overturn his defeat in Georgia and mishandling classified documents? Absolutely not. A different course of action would not have avoided the present rule-of-law crunch: had the Manhattan district attorney announced that he had evidence of a crime, but was not bringing charges for fear of Republican backlash indictments, for example, would this have placated critics? Or would it ultimately have empowered the same Republicans threatening partisan indictments?
Bad faith calls for the “weaponisation” of criminal law are meant to place democracy in an impossible bind: either drop valid charges against our political ally, or we will instrumentalise the punitive state against you. The sheer breadth and reckless of such calls, not just from leading conservative ideologues but also elected representatives—in many cases before there was even a conviction in Trump’s case—demonstrates that they already view prosecutors as partisan tools.
The rule-of-law crisis, in short, is already here. The only way forward is to press on with valid prosecutions and hope that those who’ve already given up on the rule of law aren’t able to have their way in November.
