The rule of law is a crucial dividing line between free societies and tin-pot dictatorships. One central element of that is that our constitutions and legislatures write the rules down, and the text of written rules is binding on the government and the citizen alike. Another is that we have the same law for everyone. A person who is wealthy, prominent, or politically important is subject to the same rules as someone who is poor, obscure, or uncontroversial. The combination of written rules and their equal application makes up a system of equal justice and limited government.
Perfectly equal justice will never happen, of course. Rich people can hire better lawyers. Some crimes are naturally committed only by some classes of people: The poor do not get indicted for abusing powerful public offices or violating the antitrust laws, and the rich and famous do not get arrested for vagrancy. As French writer Anatole France once quipped, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” But a rule-of-law system depends upon a general social agreement that we should apply the same rules to everybody, and put real effort into pursuing that goal. That is violated when we give powerful people a pass in cases that would get ordinary people sent to prison, but it is also violated when prominent figures get pursued over things for which no normal person would be prosecuted.
As Charlie Cooke notes, the latest leaks to the New York Times about the Manhattan District Attorney’s office’s investigation suggest that something quite unlike equal justice is going on in Cyrus Vance Jr.’s office if it is seriously considering an indictment of the Trump Organization and its chief financial officer, Allen Weisselberg, over benefits paid to Weisselberg. As the Times admits:
It would be highly unusual to indict a company just for failing to pay taxes on fringe benefits, said several lawyers who specialize in tax rules. None of them could cite any recent example, noting that many companies provide their employees with perks like company cars.
That is the definition of unequal justice. A target was chosen — Trump — because of his political prominence, and an indictment is being considered in a case where a business without political prominence would face no such threat. This is doubly dangerous because it involves going after a former president of the United States, with the apparent goal of building a criminal case against him. Presidents are not above the law; while there are reasons why a sitting president should not be indicted while in office, the office endows its holder with no special immunity. If Trump — before, during, or after his presidency — unambiguously broke a clear law for which an ordinary person would be prosecuted, such as shooting someone in the middle of Fifth Avenue, Vance would have a duty to prosecute him. But trumped-up charges against former leaders are a familiar sight in banana republics, one that America has thus far avoided. Mounting a prosecution against a former president — especially a former president who was investigated extensively in office without the bringing of charges by the self-styled “Resistance” — is a grave step for the nation and its confidence in the rule of law. That Rubicon should be crossed only on the basis of a case that can be easily explained and shown to people outside of deep-blue Manhattan as a well-known and traditional crime.
Robert Jackson, when he was attorney general before going on to be a Supreme Court justice and Nuremberg prosecutor, famously warned:
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
True in 1940, true today. As I have written many times (such as here, here, here, and here), don’t prosecute your enemies under rules you would not want used against your friends. Bringing a case against Trump or his business based on a strained or aggressive reading of the law, or its extension to situations rarely prosecuted, would not be a vindication of the rule of law but a grievous blow against it.
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