One of Trump’s Highest Profile Critics Floats Upending Classic Legal Standard To Thwart Prosecutions of the President

An argument by one of Special Counsel Robert Mueller’s top deputies could signal a radical reevaluation of the rules of criminal procedure as Andrew Weissmann believes that the legal standard to charge defendants ought to change in response to President Trump’s prosecution of his adversaries.Mr. Weissmann, who served as a federal prosecutor and is now a paid contributor to MS NOW, laments the difference between the standard for obtaining an indictment and the standard for obtaining a conviction. The former standard is probable cause. The standard for obtaining a conviction is beyond a reasonable doubt. The two standards, he writes in an op ed in the New York Times, have enabled President Trump to freely indict his foes, even if convictions have — so far — remained out of reach.Courts have interpreted “probable cause” to mean that a 51 percent threshold of certainty is required. “Beyond a reasonable doubt” is basically 100 percent certainty. The Constitution’s Fourth Amendment mandates that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause “ While the phrase “beyond a reasonable doubt” does not appear in the parchment, the Supreme Court has long held that the constitutional command that no person shall be deprived “of life, liberty, or property, without due process of law” entails that highest level of certainty. In 1970 the high court wrote that a criminal conviction requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Mr. Weissmann advocates “moving to a higher legal standard” with respect to indictments. That would make it much harder to get an indictment. He moots a “clear and convincing” test, which is usually what courts invoke to decide liability in civil cases. Mr. Trump has been found liable of civil fraud and sexual abuse and defamation — to the tune of hundreds of millions of dollars —by juries wedded to this standard. The Supreme Court has held that “clear and convincing” means that the “evidence is highly and substantially more likely to be true than untrue.” Such a change would, Mr. Weissmann acknowledges, require an act of Congress. For a template he points to an internal DOJ rule that, as he puts it, “prevents prosecutors from seeking an indictment without first determining that the case can be won later at trial and on appeal.” Mr. Weissmann argues that this prosecutorial practice can serve as a blueprint for the drafting of “enforceable laws to restrain executive action.”Mr. Weissmann detects a “whiff of prosecutorial vindictiveness” in the Trump Administration’s opening of a criminal perjury probe into the sex and romance writer E. Jean Carroll, who secured $88 million in judgments against Mr. Trump. He also cites the criminal investigation into the former director of the CIA, John Brennan, as well as the prosecutions of the former director of the FBI, James Comey and New York’s attorney general, Letitia James. The cases against Mr. Comey and Ms. James never made it to trial after a judge found that the prosecutor in charge, Lindsey Halligan, was unconstitutionally appointed by Attorney General Pam Bondi. Mr. Comey was subsequently charged last month under the auspices of her successor, Acting Attorney General Todd Blanche. Those charges relate to an Instagram post the government alleges marked a threat on Mr. Trump’s life.The institution of the grand jury is itself constitutional bedrock. The parchment commands that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Courts have held that “infamous” describes any crime whose punishment is a year or more in prison. The DOJ’s manual explains that “since all Federal felonies are punishable in that fashion they are infamous crimes.”Although Mr. Weissmann advocates a more defendant-friendly standard in response to what he sees as the abuses of the 47th president, he has not been shy about projecting certainty about Mr. Trump’s guilt in the absence of a criminal conviction. In 2023 he wrote in the Gray Lady to applaud Special Counsel Jack Smith’s indictment of Mr. Trump for election interference, calling it “entirely fitting.” Mr. Weissmann reckoned that “To not charge Mr. Trump for trying to criminally interfere with the transfer of power to a duly elected president would be to politicize the matter.” In October, Mr. Weissmann appeared with Mr. Smith in England, where the former special counsel told him that accusations that politics affected his prosecutions were “ludicrous.” Neither of Mr. Smith’s cases reached a jury, but he has not been shy about speculating about how they would have come out. He writes in his final report in the case about January 6 that he would have convicted Mr. Trump “but for” the results of the 2024 presidential election. Mr. Smith also testified to Congress that he had adduced evidence to convict Mr. Trump “beyond a reasonable doubt” — the standard for criminal conviction.Mr. Trump argued — unsuccessfully — that his acquittal of insurrection at impeachment should have, under the Constitution’s prohibition of double jeopardy, barred Mr. Smith’s prosecution. There is no single standard of certainty mandated for impeachment proceedings — each senator votes his or her own conscience.

One of Trump’s Highest Profile Critics Floats Upending Classic Legal Standard To Thwart Prosecutions of the President

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