Editor’s Note: W. James Antle III is executive editor of the Washington Examiner magazine and author of “Devouring Freedom: Can Government Ever Be Stopped?” The views expressed in this commentary are his own. View more opinion on CNN.
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As jury selection in Hunter Biden’s gun trial began on Monday, the case continued the trend of the courtroom becoming an extension of the campaign trail. It’s not a welcome development.
Biden’s trial comes on the heels of former President Donald Trump’s historic conviction Thursday on 34 felony counts of falsifying business records, with three other criminal cases against him pending. This means that the election is a contest between an incumbent president whose son is facing federal criminal charges related to a 2018 firearm purchase (with a separate federal trial on charges of tax evasion and tax fraud still to come) and a convicted felon.
In an era of intense political polarization, we could be headed down a dangerous road. Even the perception of the justice system becoming politicized would be incredibly damaging, much less the reality.
Democrats were horrified when Trump supported chants of “lock her up” aimed at then-Democratic presidential nominee Hillary Clinton during his campaign rallies in 2016. The alleged offense concerned Clinton’s handling of emails containing classified material, for which she was being investigated at the time (she ended up not being charged). Many critics saw the rally chants as a call to “lock her up” for being a political opponent.
Fast forward to 2024. Trump was charged by an elected Democratic district attorney in New York, Alvin Bragg, who campaigned on his ability to beat Trump in court and vowed to hold him accountable. Trump was convicted by a unanimous jury verdict. But Bragg relied on some novel legal theories to get past the statute of limitations and turn Trump’s bookkeeping misdemeanors into felonies, which is not necessarily the district attorney’s normal practice. The judge in the case, Juan Merchan, made pro-Biden political contributions. The donations were small, but prohibited by state judicial ethics rules and raised questions about impartiality.
There was also some dispute about the case among legal experts. Both state and federal investigators had looked for evidence of violations of campaign finance laws in Trump’s hush money payment shortly before the 2016 presidential election to adult film actress Stormy Daniels, who alleges that she had a sexual encounter with Trump (which he denies), yet had declined to prosecute him. And even if the payment to Daniels could accurately be described as a campaign expenditure, it would not be the first shady one in recent American politics. Clinton and the Democratic National Committee were both fined in 2022 for not disclosing financial research support for the controversial Trump-Russia dossier.
Making matters worse has been the celebratory air about Trump’s conviction in some circles. There have been calls from prominent liberals to make it an important part of Democratic campaign messaging this year. Early indicators show President Joe Biden may comply.
Obviously, any candidate for office is going to make an issue of their opponent being convicted of a crime. It would be campaign malpractice to do otherwise. But the perception will exist among at least some voters that attaching the “convicted felon” label to Trump in an election year was more a matter of political than legal necessity. Out of four criminal cases faced by Trump, this was the case Democrats could get to trial before the election, the argument will go, with the appeals process expected to extend past Election Day — and if the conviction is ultimately overturned, it will likely be after the election (as will the other three cases if Trump’s strategy to delay them continues to work).
There will also be Democrats who believe that the criminal cases against Hunter Biden were brought to appease Republicans complaining about the “weaponization” of the justice system against Trump.
Indeed, Hunter Biden had a plea agreement with the federal government concerning his tax and gun charges that collapsed after congressional Republicans denounced it as a “sweetheart deal” and an example of a “two-tiered system of justice” in contrast with the Justice Department and other authorities’ treatment of Trump.
Whether or not the motivations for bringing the cases against Trump and Hunter Biden are political, there is no doubt they will have political effects. Trump is now a felon about to get a sentence. The Hunter Biden trial will be a headache for the president in an election year.
Once the system’s credibility is damaged, it is difficult to repair. Democrats spoke throughout Trump’s term of the importance of maintaining certain political and institutional norms that are not necessarily laws themselves but are vital to the credibility of the rule of law.
The various cases against Trump might be separate, with various jurisdictions pursuing them independently. But in the current political atmosphere, they look to a slice of the public like a legal pile-on, a patchwork of attempts to get Trump by any means necessary. Not exercising prosecutorial discretion in the New York case may work to undermine them all politically, if not legally. Skepticism of the justice system has already been raised as an issue in Hunter Biden’s jury selection.
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And Democrats may come to regret the precedent that has been set with the first felony conviction of a former and perhaps future president — through what some experts believe was the weakest of these cases — if Trump wins and does indeed behave the way they warn he will.
Trump and people in his orbit have indeed spoken of retribution. It’s possible if he wins that this warning wouldn’t be abandoned as quickly as his vow to “lock her up” was after his last election. But a more overt politicization of justice would be even worse.
Most people in politics don’t have the level of exposure of Trump or Hunter Biden. Both men have lived dangerously for years, which is why not everyone is sympathetic to their legal plights.
But if highly charged prosecutions in a partisan political environment become more normal, we will all regret it.
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