After a jury in New York found former President Donald Trump guilty of 34 felony counts, his narrow lead in the polls over President Joe Biden hardly budged. That is to say, roughly half the country is unmoved by the new status of its preferred candidate as a convicted felon. Maybe it’s worse than that. Perhaps, as some commentators think, the convictions will add to Trump’s support by affirming his followers’ belief view that the country’s justice system is rigged against him and by converting others to the same opinion.
Despite blanket coverage, one aspect of this unfolding horror has received too little attention. Trump’s infractions together with the questionable judgement of some of his pursuers aren’t the whole story. These developments arise in part from a systemic and distinctively American vulnerability. Long before Trump came along, the U.S. criminal-justice system was a disaster – this very disaster – waiting to happen.
For a start, U.S. law enforcement relies on overtly political professionals. Prosecutors are often card-carrying partisans, elected to their positions and with sights on higher office. (The U.S. appears to be the only country in the world where citizens elect prosecutors.) Conservatives appeal to supporters by promising to crack down on repeat offenders, for instance; progressives by saying they’ll attack racial injustice and end mass incarceration. So why not serve voters by promising to go after the leader of the opposing political party and “hold him accountable” – as District Attorney Alvin Bragg did in staunchly Democratic New York?
Judges are often party loyalists too – registered Democrats or Republicans, as the case may be, willing like ordinary Americans to support their side financially. The highest court is the most political – nominally above such considerations, but universally understood to be politically sorted, with an undisputed majority at present of six conservatives to three liberals. Trump has repeatedly referred to his court appointments as “my judges.” Democrats discuss whether and how to pack the court to correct the imbalance, and in the meantime the Biden administration subverts or ignores the court’s rulings. Conservatives will doubtless do the same, should the need arise.
Politics presses on the U.S. system in another way. Thanks to the electoral incentives confronting state and federal legislators, the U.S. is seriously overcriminalized. American lawmakers love to make things illegal. They disagree about which offenses matter most, but they agree that many more things should be crimes and that the crimes they care most about should be punished more severely. In the U.S., the number of federal criminal offenses (to say nothing of other jurisdictions) seems to be literally uncountable. In 1982, the Department of Justice thought there might be about 3,000 crimes. More recently, searching the U.S. Code’s tens of thousands of pages for terms such as “shall be fined or imprisoned” yielded a count of more than 5,000.
In 2009 Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression, published “Three Felonies a Day,” a slightly hysterical title but nonetheless an absorbing and disturbing read. He emphasized not just the expanding universe of crimes but also the remarkable vagueness of many of the proliferating statutes. (What does it mean to give “material support” to a “terrorist organization”? What does “honest-services fraud” actually forbid?) Columbia Law School’s Tim Wu, better known these days as an architect of the Biden administration’s approach to competition and antitrust, wrote about a game played by federal prosecutors in the Southern District of New York, where the goal was to plausibly attach obscure offenses carrying long jail sentences to randomly chosen celebrities. Maybe “false pretenses on the high seas.” (Five years, each count.) How about “injuring a mailbag?”
The expansion of the criminal code has gone hand-in-hand with the rise of “strict criminal liability” – the steady erasure of intent as a necessary condition for criminality. Newly minted crimes tend to involve violating prohibitions – malum prohibitum (wrong because it’s forbidden) as opposed to malum in se (wrong in itself, like murder or theft). There are hundreds of different crimes involving fraud and misrepresentation. They can accommodate prosecutions of people who merely did what’s prohibited – without necessarily knowing it was prohibited or even causing anyone any harm. This underlines Silverglate’s point: It’s easy to commit crimes in the U.S. without realizing.
This proliferation of vaguely defined offenses means that most crimes aren’t prosecuted. They can’t be. If they were, the system would collapse. Vast prosecutorial discretion is therefore an unavoidable feature of the system – and this discretion confers power.
Another expedient makes prosecutors more powerful still. When they choose to bring a case, they can marshal numerous charges and multiple counts (ideally with mandatory minimum penalties) to coerce a guilty plea to a lesser charge and/or cooperation from reluctant witnesses in pursuit of other suspects. Charge stacking and coerced confessions – plea bargains, as they’re called – are standard operating procedure in the U.S. Almost 98% of federal convictions are plea-bargained. In 2012 the Supreme Court said that U.S. criminal justice “is for the most part a system of pleas, not a system of trials.” (This used to be a distinctively American thing, but other countries, facing similar administrative stresses in their justice systems, are catching up.)
The resulting combination of unusually powerful prosecutors and unusually political prosecutors has always been fraught with risk. The danger of prosecutorial abuse in the ordinary course of administering criminal justice is important in its own right, of course; and containing it isn’t straightforward, given legislators’ approach to law-making. But prosecutorial excess harnessed to nakedly partisan goals is a far more potent threat. It destroys trust in the rule of law. Without that, the U.S. isn’t so much in danger of becoming a banana republic; it will in fact be a banana republic.
In politically salient cases, prosecutors need to be, and seen to be, scrupulously fair. The mere suspicion that they’re contorting the law to cripple a political enemy is poisonous. The merits of the various Trump prosecutions vary, but New York’s 34 felony counts – in furtherance of an election promise – do seem to warrant suspicion. To the untutored eye, this was proud partisan lawfare not impartial justice. Most worrying of all, many Democrats are fine with it, because Trump must be stopped at any cost. The problem is, lawfare might not stop him, and the costs of using it for that purpose might be more awful than its advocates think.
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