Franklin D. Roosevelt’s Attorney General Robert H. Jackson observed in 1940 that “with the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” In the decades since, the federal criminal code has only expanded. In a time of heightened polarization and fracturing civic norms, the temptation of lawfare grows. Justice Department officials appointed by the president of one party or the other have incentives to bring politically motivated cases, as do elected district attorneys in deep-red or deep-blue jurisdictions.
Could Congress do anything to reinforce the porous separation of law and politics? At least in theory, the combination of Republican anger over Trump’s conviction and liberal anxiety over a future Trump administration is an opportunity for reform. And even if reforms are dead on arrival, debating them can help the political system grapple with the lawfare problem. In that spirit, here are three ideas.
First, Congress could codify the Justice Department’s internal guidelines intended to guard against lawfare. One of them prohibits prosecutors from selecting “the timing of any action … for the purpose of affecting any election.” Harvard Law School’s Jack Goldsmith has argued that special counsel Jack Smith is ignoring the guideline as he tries to accelerate proceedings in Trump’s Jan. 6, 2021, Capitol riot prosecution so the trial occurs before voters go to the polls in 2024.
But the guideline is just that — a guideline, unenforceable and open to interpretation. The Justice Department is free to flout it, though prosecutors theoretically need to consult with “the Deputy Attorney General or Attorney General” when it’s a close call. Congress could think about ways to give teeth to the ban on electorally driven decisions by prosecutors. For example, if a court found a federal prosecutor in violation, he or she could be removed from a particular case.
Another reform could involve campaign finance law — an ill-defined area particularly susceptible to lawfare because it regulates politicians and their donors. The strangest part of Trump’s conviction last month is the way it mixes state laws with a federal campaign finance law. As former federal prosecutor Elie Honig put it in New York magazine, “no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything.”
It would change U.S. elections if state district attorneys started to prosecute federal candidates for breaking campaign finance rules. In addition to worrying about how the Federal Election Commission and Justice Department understand the rules, campaigns would need to start worrying about their interpretation by local prosecutors as well.
The number of authorities with jurisdiction over campaign spending would dramatically increase. Democratic presidential candidates, for example, could be charged in conservative counties by elected Republican prosecutors for campaign finance crimes that the Justice Department would never have brought. Congress could eliminate this risk with its power, under the Constitution’s supremacy clause, to “preempt” state laws. It could declare that criminal prosecutions relying on the Federal Election Campaign Act of 1971 can only be brought in federal court by federal prosecutors.
Finally, Congress could allow some cases to be moved out of Washington. Many politically charged cases are brought in the U.S. District Court for the District of Columbia because, well, that’s where politicians do many of their dubious deeds. It isn’t lost on prosecutors that the city is also one of the most progressive jurisdictions in the country, with just 5.4 percent of residents voting for Trump in 2020. In politically charged cases, the overwhelmingly liberal jury pool means Washington is a more favorable trial venue for Democratic criminal defendants than Republicans.
For certain criminal prosecutions in the capital city — say, cases against government officers, or cases brought by a special counsel — Congress could give the defendant the option of a lottery to decide where in the country the case would be tried. Congress has the constitutional power to set the trial venue for crimes “not committed within any State.”
Republicans can get fair trials before progressive juries just as Democrats can get fair trials before conservative juries. But jurors need to make judgments about motives and intent that are hard to disentangle from politics in some cases. The partisan asymmetry of D.C.’s jury pool can encourage at least the perception of unequal treatment, greasing the skids for lawfare.
Of course, rules intended to solve particular problems can create new ones. Reforms carry downsides. But despite their many political disagreements — or maybe because of them — both parties should share an incentive to mitigate the lawfare risk.
Congress could sit back and hope for an unforeseen outbreak of statesmanship in both parties. Or it can move the ball by identifying reforms that would deter political prosecutions without bottling up the justice system. Because as it stands, the main deterrence against lawfare is the risk that your side will be next — and that makes for some ugly incentives.
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