The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Against the "Banana Republic" Critique of Indicting Trump
The real banana republic danger is if high officials can commit serious crimes with impunity.
Earlier today, the Justice Department indicted Donald Trump on 37 counts related to his retention of classified documents after leaving office in January 2021. A good many Republicans have reacted by claiming that the indictment is "the stuff of a banana republic" (as Trump's former acting attorney general Mat Whitaker put it) or otherwise reminiscent of authoritarian states. Nothing can be further from the truth. There are several different ways of understanding the "banana republic" critique. But none of them actually apply to this case, though some might be appropriate to the much more dubious previous indictment of Trump on New York state charges.
It is simply not true that prosecuting a former president or other prominent politician is the kind of thing that only banana republics do. Many liberal democracies have prosecuted current or former heads of state and heads of government. Notable examples include France, South Korea, Israel, and Italy. Israeli Prime Minister Benjamin Netanyahu is on trial for corruption right now. A similar fate befell his predecessor Ehud Olmert, who ended up getting convicted and serving a prison sentence.
Giving high officials impunity for criminality is actually a hallmark of authoritarian regimes. The fact that Russian President Vladimir Putin routinely commits war crimes and other violations of law without fear of prosecution is a sign of the degeneration of that country's political system, even if some trappings of constitutional government remain.
Another variation on the banana republic claim is that Trump is being charged for petty offenses, on weak evidence, or on the basis of convoluted legal theories—and prosecutors would not have done such things to an ordinary person who had done the same thing. Some such accusations are plausible in the case of the New York indictment brought by state prosecutor Alvin Bragg, which arguably features both relatively petty offenses and dubious, convoluted legal reasoning.
But the classified document case brought by special counsel Jack Smith is much stronger. The indictment includes extensive evidence that that 1) the files were in fact classified, 2) Trump knew they were (they even have recordings of him saying so!), 3) Trump deliberately tried to withhold them, and 4) the classified information (at least some of it) was actually important (e.g.—war plans). This was not simply a case of him retaining some insignificant records that perhaps should never have been classified in the first place. For that reason, Trump's offense here posed a genuine risk to national security.
And there's no creative legal theory involved. If the charges are true, they qualify as pretty straightforward violations of a variety of federal statutes. If a low-level federal employee had done the same thing, the Justice Department would have thrown the book at him. Especially if that underling (like Trump and Richard Nixon before him) left helpful recordings documenting his criminality.
The evidence is so strong that it's not easy to see how the defense could refute it. But perhaps Trump's lawyers have compelling evidence of their own to refute the charges. If so, let them present it in court. At the very least, the evidence in the indictment is strong enough to justify bringing charges.
In a legal system where there are so many laws that a large majority of adult Americans have probably committed a crime at some point in their lives, there is always the risk that an unpopular person will be unfairly hauled into court for petty reasons. That risk also applies to political opponents of the party in power. But that doesn't seem to be what happened in this case. Moreover, the way to deal with that danger is not to give prominent political leaders impunity for their crimes, but to cut back on dubious criminal laws, and enforce norms of political impartiality on prosecutors.
A final possible variant of the banana republic charge is that, due to political bias, Trump is being charged for an offense that Joe Biden is being allowed to get away with. Biden, too, retained classified documents after leaving office (as vice president under Barack Obama). So far, however, the evidence suggests that Biden did not take them deliberately, and (unlike Trump) he turned them over as soon as it became clear he had them. But Biden is under investigation by a special counsel, too (Former Trump US attorney appointee Robert Hur). If it turns out his conduct was in fact similar to Trump's, then by all means indict him, as well! Hur has every incentive to uncover such evidence, and to not spare Biden if he finds that the latter committed offenses similar to Trump's.
If Hur does find comparable evidence against Biden, it may not be possible to prosecute him while he is still president, given Justice Department policy against indicting a sitting president. Perhaps this policy is wrong (I have reservations about it, myself). But Trump supporters are not well-positioned to complain about it, given they were happy to see it shield Trump himself while he was in office.
Similar points apply to attempts to draw parallels between Trump's conduct and Hillary Clinton's use of an illicit e-mail server when she was Secretary of State. Although reprehensible, her conduct was was less bad than Trump's. Among other differences, she misplaced the relevant classified information at a time when she was still in office (and therefore entitled to have it). Trump, by contrast, took classified documents on his way out the door, when leaving office. Unlike with Trump, there is no evidence Hillary Clinton revealed any classified information to third parties. Moreover, when the server was discovered by authorities, she turned it over to them, instead of trying to stonewall, as Trump did.
Perhaps Clinton should still have been prosecuted; her actions were certainly reprehensible. But it's not a double standard to conclude she should not have been, yet simultaneously support an indictment for Trump's more serious offenses. And if you think Clinton should have been prosecuted (or at least investigated further), much of the blame for the failure to pursue the issue falls on the Trump administration, which could have done so during their four years in office.
While the classified documents indictment seems well-justified, the crimes involved are still less serious than those involved in still-ongoing investigations of Trump for attempting to pressure officials into overturning the 2020 election result in Georgia and for his role in the events leading up to the assault on the Capitol on January 6, 2021 (see pp. 98-118 of the January 6 Committee Report for a discussion of potential charges stemming from the latter). A president seeking to use force and fraud to stay in power after losing an election is truly the stuff of banana republics! And, whatever their other misdeeds, neither Biden nor Hillary Clinton has done anything remotely comparable. There may not be a truly comparable case in all of American history. The best way to avoid becoming a banana republic is to prosecute Trump for those actions, severely punish him if found guilty, and thereby deter future wrongdoing of the same kind.
