This point is most obvious when it comes to the least compelling case against Trump, the one that Alvin Bragg is leading in New York. Bragg campaigned for his job as Manhattan district attorney on a platform that included prosecuting Trump. He is now employing what even liberal commentators have described as a “creative interpretation of New York state law” to make good on that promise. His case relies on the word of Trump’s former lawyer Michael Cohen, an admitted liar. (This is, admittedly, a pitfall for any lawman who goes after Trump: When a man routinely associates with lowlifes to do scummy things, he has a built-in defense against the main witnesses.)
But even the most solid case against Trump, special counsel Jack Smith’s indictment of him over his obstinate postpresidential possession of government documents, bears the marks of political selectivity. It’s true that President Biden was quicker to turn over his own illegally retained classified documents than Trump was. That difference justifies charging Trump with obstruction. It doesn’t justify charging Trump, but not Biden, with violating the Espionage Act.
Smith has been seeking to try his election interference case against Trump before the election — but he refuses to say so openly in his legal filings, because it would be improper for prosecutorial decisions to turn on the political calendar. The cheer section for these prosecutions is less inhibited, feverishly speculating about the potential electoral impact of the cases and picturing the orange man in an orange jumpsuit.
Trump isn’t just playing the victim. He is a victim of unfair, law-bending prosecution.
When we think about political persecution, however, we typically have in mind someone who has done nothing wrong but challenge the powerful. That’s not the picture here: In each of these cases, Trump’s underlying conduct is indefensible. That fact helps to explain the widespread support for the legal campaign against him. His efforts to stay in power after losing the 2020 election, especially, were despicable.
It’s natural to assume that they must also have been illegal, especially given that they culminated in a violent attack on the U.S. Capitol. Sen. Mitch McConnell, the Republican leader from Kentucky, made that assumption in his speech opposing conviction in Trump’s second impeachment trial: He said that the courts could handle Trump’s postelection conduct even if the Senate did nothing.
What that assumption missed is that offenses against the constitutional order, even serious ones, don’t always coincide with violations of criminal statutes. Even Smith has refrained from charging Trump with inciting the Capitol riot. He might be morally responsible, but that does not mean he is legally responsible, and our free-speech jurisprudence rightly insists on the distinction. The Senate’s failure to hold Trump accountable created a demand for it to be done by institutions less suited for the job.
For the worse part of a decade now, we have been stuck in an ugly pattern in which Trump’s misconduct calls forth abusive or unfair responses from his opponents. Millions of Americans now think Biden is trying to retain power by putting his main opponent in jail. That’s not the complete story: Trump did try to steal the election, he almost certainly broke laws about classified documents, and prosecutors have reasons beyond partisanship to pursue him. But it’s truer than we should be comfortable with, which is why prosecutors should have trod more lightly than they have.
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