Criminalizing Politics is a Threat to Democracy

Both President Biden and former Presidents Obama and Trump are partly to blame

Since I was a sophomore in Yale College, in 1976, I have studied the process by which democracies die and get turned into dictatorships. One of the key causes of the death of democracy is the criminalization of political disagreements. While politicians love to be able to cast their opponents as being not merely wrongheaded but also crooks, this is a temptation that must be avoided. The jailing of people who one cannot beat in a free and fair election subverts democracy and has led to dictatorship in many democracies.

It has only been 231 years since the French Revolution's Reign of Terror ultimately sent 50,000 people to the guillotine including former King Louis XVI and his wife Marie Antoinette. This situation led inevitably to a Napoleonic dictatorship. Americans must resist at all costs traveling down this very same dangerous path.

In his State of the Union address last night President Biden cast himself as the defender of democracy who would jail former President Donald Trump. I criticized President Trump's behavior on January 6, 2021 in scorching terms, and I argued that his second impeachment should end with a verdict of disqualification from holding office in the future. But, I specifically said then, and I continue to believe now, that no former President of the United States should ever be sent to jail because of the effect that doing so would have on the 35% to 40% of the U.S. population has in revering a particular President who may have committed a crime. President Gerald R. Ford's best and most memorable act in office was his simultaneous pardoning of President Richard M. Nixon and of the Vietnam War era draft evaders to heal the country from the poisonous, political atmosphere of the late 1960's and early 1970's.

Notwithstanding this, the Biden Administration is currently criminally prosecuting Donald Trump for offenses that would lead to Trump's imprisonment where he could easily be murdered by fellow inmates. Trump has thus likened himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putin who was recently murdered in jail where he was held for the crime of running against Putin when he is up for re-election. Even more offensively, Trump is being prosecuted by an unconstitutionally appointed Special Counsel instead of by a Senate-confirmed U.S. Attorney who has been designated to be a federal Special Counsel. The reasons why this is unconstitutional are spelled out in meticulous detail in a law review article by me and Professor Gary Lawson, Why Robert Mueller's Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019).  We have made these same arguments as well in numerous amicus briefs about Jack Smith's illegal appointment as Special Counsel, which we have been filing in 2023 and 2024 in the U.S. Supreme Court, in the U.S. Court of Appeals for the D.C. Circuit, and in the Florida District Court before which Trump is being prosecuted by Jack Smith.

If President Biden was really serious about being a friend of democracy, he should also call out New York State Attorney General Letitia James for her highway robbery civil lawsuit for $450 million in civil fraud fines and penalties, which just happens to drain Donald Trump of all of his cash just when the national presidential election is getting started, and he needs money.  This is a vile abuse of the legal system, which poses a direct threat to democracy.

On top of all of this, there is the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the "crime" of which he is most plausibly guilty. Instead, the Biden Administration waited nearly two years to prosecute Trump for his behavior on January 6, 2001 finally filing dubious indictments and almost guaranteeing that any criminal trials would occur in the middle of the presidential election, as is now happening. Joe Biden and Merrick Garland's "pretense" of "depoliticizing" the Justice Department is nothing more than a fraud on the American people. A serious Attorney General would have appointed a U.S. Attorney Special Counsel to investigate Trump for violating the Insurrection Act at 12:01pm on January 20, 2001, and such a serious Attorney General would have made clear that he sought no jail time but only a disqualification from holding office in the future. Trump should have, at most, been treated the way former President Richard M. Nixon was.

Former President Trump and House Republicans are just as guilty of criminalizing politics as is the Biden Administration. They have hounded Hunter Biden, a sad middled-aged, drug addict, with countless calls for criminal prosecution.  While many of these complaints have some merit, and while I believe Hunter Biden has committed crimes, I think he should be heavily fined and not jailed because of the norm of not criminalizing political disagreements.  Former President Trump has also threatened to weaponize the Justice Department against his political foes if he is elected President in November.

It is quite understandable, given all that the Democrats have put Trump through, for the former President to feel the way he does, but he should turn the other cheek and not seek revenge. Trump needs to restore democracy in the United States, and the bringing of partisan criminal prosecutions will not accomplish that goal. Back in 2016, when Trump called for locking up Hillary Clinton for her home use of a private server for classified information, I wrote in opposition to prosecuting Hillary Clinton. As Trump has lived to discover, prosecutions for the mishandling of classified documents are very much of a two edged sword, one edge of which is now quite wrongly being used against Trump himself.

Former President Barack Obama started this recent descent into the criminalizing of politics when his Justice Department, on totally spurious grounds, began a secret criminal investigation of Trump's 2016 presidential campaign when he was still just a candidate for office.  The Obama FBI's behavior was reprehensible as was the absurd Mueller Special Counsel investigation it led to.

It takes two parties—Democrats and Republicans—to start the process of criminalizing politics and it will take both parties to stop it.  The media, the academy, and the judiciary should come together and do this country's democracy a big favor by ending the criminalization of political disagreements, which threatens to become like the French Revolutionary Reign of Terror. Our 235 year old constitutional democracy has never been in greater danger.