‘Law Enforcement Becomes Personal’

The legal filings in New York against President Trump are a classic case of what FDR’s famed attorney general warned against in outlining the ethics of prosecutors.

Library of Congress via Wikimedia Commons
Robert Jackson in 1940. Library of Congress via Wikimedia Commons

The legal filings in New York Wednesday against President Trump and his children rest uneasily with those who cherish the ethics of the prosecutor as long-since outlined by Robert Jackson. In a civil suit, New York’s attorney general, Letitia James, accuses Mr. Trump and three of his children of “staggering” deceit. Ms. James seeks damages of $250 million. She has also referred the cases to federal authorities for possible criminal prosecution.

Speaking to the press after her lawyers filed the 280 page complaint, Ms. James chided Mr. Trump to the effect that “claiming you have money you do not have does not amount to the art of the deal. It is the art of the steal.” This plumping in the press for her case should come as no surprise. When she was running for the office she now holds she declared that Mr. Trump “can be indicted for criminal offenses.” 

At the time she had yet to present even a quark of evidence in court. Even now, in assigning herself a civil suit (she has no authority to press a criminal case), Ms. James sets herself an easier target. Rather than labor to prove his guilt “beyond a reasonable doubt,” her office would be required to show only a “preponderance of the evidence,” or 50.1 percent certainty. In other words, her case need be merely gelatinous rather than solid. 

One of those we spoke with yesterday was a famed litigator, Harvey Silverglate. He sees “hubris and grandstanding” in Ms. James’s referral of the case to the feds, who are “fully capable of understanding the situation” and “have as many or more facts” as Ms. James. While no fan of Mr. Trump — he would count his fingers after shaking hands with the man — in these prosecutions Mr. Silverglate sees a system run amok. 

The latest actions are shocking, too, given that the district attorney of New York County, Alvin Bragg, has already pored over the same set of facts and decided not only against charging Mr. Trump, but appears to have no intention of doing so, holding firm against pressure inside and outside of his office. If we understand his reluctance, it’s that no one was damaged. One can but wonder what he knows that Ms. James does not.

We carry no brief for Mr. Trump either. Yet the multi-front campaign to convict him of something — anything — has long since begun to look to us like what Robert Jackson, then FDR’s attorney general, was talking about when he warned federal prosecutors against identifying a culprit they didn’t like and then seeking a crime with which to charge him. He called it the “most dangerous power of the prosecutor.” 

What he worried about was that the prosecutor “will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” In such cases, he warned, “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 where a prosecutor picks “some person whom he dislikes or desires to embarrass” that, Jackson said, “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.”

We’ve written about Jackson’s warning many times in these columns, but we have rarely seen it so clearly as in the campaign just launched in New York. Or writ so large as in the vast campaign the Democrats — in Congress, in the Department of Justice, in Carolina, Georgia, and elsewhere — have been levying in grand juries or courts across the country. Robert Jackson would have been shocked down to the ground.


The New York Sun

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