The multiple ongoing criminal investigations of Donald Trump present prosecutors with something they rarely encounter: A genuinely bad actor who almost certainly cannot be induced to plead guilty and will therefore have to be tried and convicted in open court. But that’s increasingly unfamiliar territory in a system where more than 95 percent of criminal convictions come from guilty pleas instead of jury trials, and prosecutors seeking to convict a former president on less-than-ironclad charges may find they’ve bitten off more than they can chew. Accordingly, there are three Ps to consider in deciding how best to proceed: Prudence, politics, and plea bargaining.
Prudence
No current or former president of the United States has ever been charged with a crime, let alone actually prosecuted. That’s no small thing, and those who are clamoring for prosecutors to bring various state and federal charges against Donald Trump would do well to reflect on it more than it appears some of them have.
Two things are both true and in tension here: First, no one is above the law, and we pride ourselves (though perhaps unduly) as a nation where the powerful and the powerless are equally subject to the same set of laws. But second, there are strong prudential reasons for proceeding with caution when considering whether to prosecute former heads of state—particularly in markedly overcriminalized and increasingly polarized democracies like ours.
Has Donald Trump committed felonies? Probably. But you know what? You probably have too. Indeed, there’s an entire legal literature devoted to the proposition that most Americans have committed serious crimes for which they could in principle be prosecuted. And that’s even more true of people who’ve run for office, thereby exposing themselves to the intricate web of state and local election laws that present a virtually unnavigable hazard for Republicans and Democrats alike. And the less said about illegally mishandling classified documents, the better—for both parties.
So the question really isn’t whether high-ranking officials have committed crimes for which they could be prosecuted—like most of us, the answer for most of them is presumably yes—but rather which of those crimes (if any) they should be prosecuted for? The answer to that question is hard, not easy, and the consequences for getting it wrong could well be dire. In South Korea, for example, “presidents have routinely been jailed after the end of their terms” and “[f]requently investigations have felt politically motivated.” Can there be any doubt that a second-term President Trump would seek to weaponize the Department of Justice and unleash it on his perceived antagonists, perhaps including (former) President Biden himself?
None of this is to say that former presidents are entitled to an all-inclusive free pass just because there’s a risk of initiating a vicious cycle of retributive prosecutions. If Donald Trump were caught handing over trash bags full of classified information to Russian intelligence—like FBI agent Robert Hansen or CIA officer Aldrich Ames—then of course he should be prosecuted for that. But there’s a legal spectrum here that runs from the crime of harassing fellow golfers on a federally operated course to a certifiable act of treason as described above—and it’s fatuous to pretend otherwise. Accordingly, prudence dictates that prosecutors proceed with the utmost caution when considering whether to indict a former president, and that they seek to ensure any charges they bring are not only well-founded in fact and law, but in some sense necessary as a matter of basic civic duty.
Politics
This point is simple and flows naturally from the discussion of prudence: Any decision to prosecute a former president mustn’t have even the slightest whiff of politics about it. Thus, if Donald Trump were to actually shoot someone dead in the middle of Fifth Avenue, he might or might not lose any voters (he claims not), but he would most certainly be prosecuted for it—regardless of the serving DA’s political affiliation.
But of course, things are rarely so clear-cut. As noted above, criminal offenses fall along a spectrum from ho-hum to horrific, and the decision whether to prosecute a given offense takes place against the backdrop of a criminal justice system that does a remarkably poor job of solving even the most serious crimes. Thus, the decision to commit resources to one case necessarily entails withholding those resources from prosecuting some other, potentially more serious malefactor.
In that context, the Manhattan DA’s investigation—and, if Trump himself is to be believed, imminent indictment—of the former president for falsifying documents in connection with a 2016 hush-money payment strikes some as self-evidently politically motivated. True, Trump’s former lawyer/bagman Michael Cohen pleaded guilty to campaign-finance violations for his role in facilitating that payout, but it’s unclear at this point whether Trump’s alleged acts rise to the level of a felony. And even if they do, there’s a non-trivial statute-of-limitations issue that could torpedo the whole case.
Thus, as various pundits have argued, it seems wildly implausible to suppose that this seven-year-old case would have been pursued if the defendant were anyone else but Donald Trump. And even if one disagrees with that assertion, it’s sufficiently plausible to raise the specter of politics—that is, the possibility that Manhattan District Attorney Alvin Bragg’s decision to present this case to a grand jury, to invite Trump to testify before the grand jury (a traditional precursor in that jurisdiction to returning an indictment), and perhaps to indict Trump on state charges of falsifying business records is at least partly motivated by political considerations.
Again, the key point is not whether Bragg was in fact motivated by politics—only he knows for sure, and he would certainly never admit it if so; instead, the point is whether it’s plausible to suppose that he is. Unfortunately, the behavior of some Democratic activists in the latest midterms—including providing financial support to Trump-favored Republican candidates on the correct assumption that they would be more likely to lose to Democrats in the general election—lends credence to that supposition. Bottom line, someone who detects the aroma of politics emanating from the Manhattan DA’s office may well be mistaken, but they’re certainly not crazy.
Plea Bargaining
The last of the three Ps concerning the potential Trump indictment is plea bargaining—or, more precisely, the strong likelihood that unlike in the vast majority of criminal cases there won’t be any. Why do I think that and why does it matter?
First, all four of the known criminal investigations of Trump—falsifying business records in New York; election-tampering in Georgia; January 6 incitement in DC; and mishandling classified documents in Florida—have problems of various kinds, and none is a slam-dunk. It would certainly not be irrational of Trump to think that he can beat each one in court, whatever the odds of actually doing so might be. A well-resourced defendant with confidence in his ability to mount a zealous and effective defense will be less inclined to accept a plea offer, which in turn requires more than the usual amount of pressure from prosecutors seeking to elicit the guilty plea that has now become all but inevitable in our system.
But the kinds of tactics that prosecutors commonly use to “induce cooperation” (which is their preferred euphemism for inducing a defendant to waive his right to trial and plead guilty) can appear extraordinarily brutal and even thuggish, especially to the uninitiated. These include but are not limited to the gratuitous use of pretrial detention (with or without an additionally motivating dose of “diesel therapy”); charge-stacking; mandatory minimum sentences; savage trial penalties; and even threatening to indict (or promising not to indict) a defendant’s family members simply to exert plea leverage (a tactic that has been repeatedly challenged and repeatedly upheld in federal court). While those and other tactics are perfectly routine in run-of-the-mill cases, it seems most unlikely that prosecutors would choose to put them on public display in such a high-profile prosecution.
Finally, as suggested above, there are serious questions about the propriety of pursuing any of these cases, and seeking to convict a former president for marginal conduct may strike some potential jurors (even ones who dislike Trump personally) as a bridge too far. All it takes is one juror to say—as they have every right to do—“You know what? He may be guilty as hell, but I simply can’t go along with this.” If you think the chances of such a person ending up on a Trump-jury are zero just because the trial is in Manhattan—or for any other reason—then you’ve never picked a jury and you’ve never tried a case. Moreover, the use of so-called jury nullification to protect criminal defendants from politically motivated prosecutions is among the most ancient and enduring features of our system. The notion that it could never come into play against a former president—even this particular one—is implausible at best.
Whatever its systemic merits and demerits, plea bargaining has proven an effective tool for smoothing the rough edges off of dodgy cases and sweeping messy facts like police and prosecutorial misconduct under the rug. As ubiquitous a tool as plea bargaining has become in our system, however, prosecutors shouldn’t count on Donald Trump to go down without a fight—and a messy one at that.
