This is so unhinged it is tempting to ignore it as overheated bloviating. That would be a mistake. The individuals inciting this prosecution-as-payback approach sit at Trump’s elbow. And they appear incapable of grasping the essential flaw in their reasoning: that, even assuming the basest partisan motives on the part of Trump’s pursuers, the proper response is to retaliate in kind.
Yes, this eye-for-an-eye justice is precisely what they are advocating.
Listen to Stephen K. Bannon, Trump’s former chief strategist, who wrote in a text message to the New York Times, which assembled a chilling montage of such exhortations. “There are dozens of ambitious backbencher state attorneys general and district attorneys who need to ‘seize the day’ and own this moment in history,” Bannon wrote.
Listen to Trump adviser Stephen Miller. “Is every House committee controlled by Republicans using its subpoena power in every way it needs to right now?” he asked on Fox News. “Is every Republican DA starting every investigation they need to right now. … Every facet of Republican Party politics and power has to be used right now to go toe-to-toe with Marxism and beat these communists.”
Listen to almost-attorney general Jeffrey Clark, who called for “brave district attorneys in the United States to step forward and to take aggressive action … just for starters, as soon as possible,” filing civil rights lawsuits against those who prosecuted Trump.
Listen to Mike Davis, a former Republican Senate aide, who is pressing a similar strategy. “The Republican attorneys general in Georgia and Florida and the county attorney in Maricopa County, Ariz., need to open investigations” into those pursuing Trump and his allies, he said. “Then on Day 1, when he wins, President Trump needs to open a criminal civil rights investigation.”
And listen to John Yoo, who served in George W. Bush’s Justice Department and who had the audacity to cast his argument as a defense of the rule of law, not its dismantling.
“Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you,” Yoo, now a law professor at the University of California at Berkeley, wrote in National Review.
“In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents,” Yoo continued. “A Republican DA will have to charge Hunter Biden for fraud or corruption for taking money from foreign governments. Another Republican DA will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad. Only retaliation in kind can produce the deterrence necessary to enforce a political version of mutual assured destruction.”
In other words, Yoo suggests, we must destroy the rule of law to save it.
And, of course, there is Trump himself. “So, you know, it’s a terrible, terrible path that they’re leading us to, and it’s very possible that it’s going to have to happen to them,” Trump told Newsmax. “Does that mean the next president does it to them? That’s really the question.”
One response to this demand for organized retribution is that it exposes the folly of seeking to use the criminal justice system, not electoral politics, to hold Trump to account. As I wrote nearly a year ago, when special counsel Jack Smith filed the election interference case against Trump, “The risks of charging Trump include inflaming even more distrust of what his allies will claim is a partisan ‘weaponized’ Justice Department; injecting more turmoil into an already inflamed and divided electorate; and, most frightening, unleashing a punitive cycle of prosecuting political opponents.”
But prosecutors and the criminal justice system more broadly shouldn’t be held hostage by fears over the consequences of their actions, whether the fallout is riots in the streets or retaliatory lawlessness by rogue prosecutors. Elections are the ultimate expression of the public will, but prosecutors play a different, and also essential, role, in protecting the public interest. They should exercise that power carefully, but they should also not be scared off by the potential fallout.
Rather, it is incumbent on responsible public officials, journalists, citizens to call out this for what it is: dangerous, unlawful and un-American.
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