The facts and law behind the case of New York District Attorney Alvin Bragg successful prosecution of Donald Trump One could discuss this at length. But since I actually have been a prosecutor for 30 years, I’m particularly thinking about the ethics of the prosecution on this case.
After the decision was announced, Trump said outside the courthouse: “That was a shame.” That reflects comments made over the year since his indictment in the case, in which Trump repeatedly claimed that the prosecution was “political persecution.”
His argument is definitely justified.
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No one has higher laid out the necessary ethical standards that enable prosecutors and federal prosecutors to keep up a picture of integrity and honesty than Supreme Court Justice Robert Jackson. In a Speech to the country's federal prosecutors On April 1, 1940, he stated that prosecutors should select those cases wherein the crime was “most flagrant and the harm to the public greatest,” but additionally warned that the prosecutor's ability to pick out defendants represented the “most dangerous power.”
The choice of defendants, Jackson said, requires judgment. This power might be abused.
“Because the statute books contain a wide variety of crimes, a prosecutor has a good chance of finding a technical violation of a particular act in almost any one of them,” Jackson said. In certain cases, he said, “it's not a matter of discovering the commission of a crime and then looking for the man who committed it, but of selecting the man and then searching the statute books or employing investigators to charge him with a crime.”
The best danger of abuse of power is that the prosecutor “picks a person he doesn't like or wants to embarrass, or picks a group of unpopular people and then looks for an offense,” Jackson warned.
For years, as a federal prosecutor, I used to be proud to face before a jury and announce, “Ron Sievert for the United States.” I used to be convinced that nearly all of those within the courtroom understood that the federal government had traditionally prosecuted the “most egregious” cases. Those were cases wherein, as Jackson said, “the public harm” was “the greatest.”
We prosecutors have maintained our repute for not pursuing cases for political reasons by only pursuing cases where there have been real victims, within the sense of physical injury or financial loss. The U.S. Department of Justice has had an unwritten but long-understood policy of never charging and trying a politician for a nonviolent crime inside a 12 months of an election.
The prosecution of Donald Trump by New York can and has been characterized long before today by some as a “political prosecution” due to the firm belief that if Trump had not run for president, there would never have been an indictment based on an allegedly false record.
Judge Jackson warned that such a case, with no obvious victim, could undermine public perceptions of the prosecution's legitimacy. This prosecution could have angered Trump, but the true query is: Will it damage the trust – each within the United States and internationally – that American prosecutors have earned over a long time?
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