190712 Donald Trump
Many legal experts believe that President Trump could be indicted following a search at his Florida residence last week carried out by the FBI in connection with an investigation into classified information reportedly taken from the White House Image Credit: AFP

Should former American presidents who are believed to have committed crimes, either in office or afterward, be indicted?

It is never simply the case that prosecutors in the US indict anyone who they believe is guilty of crime. For one, it’s misconduct to indict without confidence that a conviction will follow.

More generally, there are plenty of petty (and even some not so petty) crimes on the books that a prosecutor intent on imprisoning a target could invoke if they were dead set on indictment. But prosecutors aren’t supposed to figure out whom to indict and then look for a crime that can yield a conviction.

Will Trump’s chances of winning the Republican presidential nomination in 2024, should he seek it, be helped or harmed by enforcing a warrant and seizing boxes of materials that he (allegedly) shouldn’t have had in his possession?

What about the possibility of angering Trump’s supporters to the point of civil unrest? Even if prosecutors could know the answer to these questions, the potential political fallout shouldn’t be a factor in their decision about whether to prosecute.

Get Out of Jail Free card

If the rule of law means anything, it is that no one can use the threat of violence as a Get Out of Jail Free card. Indeed, the former president’s devout fans are likely to take that view of any criminal justice action targeting him, no matter the evidence.

We know who Trump is. Just as he can’t lose an election without claiming fraud (indeed, he claims fraud even when he wins), he will never voluntarily acknowledge the legitimacy of a legal action against him or his allies. That can’t be the basis for ignoring what otherwise would be a decision to investigate. Or indict.

Prosecution is always a judgement call. And in that sense prosecution decisions are always going to be broadly political. When the person involved is a politician, that is only going to be more obvious. And that’s not bad. The criminal justice system is part of the larger political system. The rule of law, after all, is a political concept, part of a general idea of how self-government should work.

What prosecution decisions shouldn’t be is partisan, which is to say, they shouldn’t be based on the best interests of one political party. Nor should they be personal, where individuals are singled out for prosecution — or spared from it — because of their political affiliation.

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That’s why the “lock her up” chants directed at Hillary Clinton during the 2016 presidential campaign (and, eventually, at a host of other opponents) sanctioned by Trump were such a big deal. They were a repudiation of the entire notion that the law shouldn’t be partisan or personal. They were, in effect, a repudiation of the rule of law.

So where does that leave us? Trump’s illiberal behaviour and that of his supporters shouldn’t give him immunity. But while a decision to indict Trump would need to be clearly explained, we can’t judge it on whether it is persuasive to voters at large.

And there is no way law enforcement can make sure that their actions won’t be misconstrued by Trump and his supporters, or even by the larger block of Republicans who find appeasing the former president their safest path.

Moreover, because any decision to indict or not is inherently political, Trump’s behaviour is a legitimate part of that decision. Trump’s implicit claim that he is above the law should factor into prosecution decisions — and make an indictment more appropriate.

It should take a good deal more than having a plausible case to decide to indict a former president. It’s really closer to the other way around: An indictment must be made when the evidence, the law and the former president himself make it obvious that not acting would be the exception to normal prosecutorial standards.


Jonathan Bernstein is a former professor of political science at the University of Texas