The Justice Department and the FBI have suffered a series of self-inflicted wounds in the past decade.  These have undermined trust in the institutions among voters, a distrust which Donald Trump is only too happy to exploit.[1]  In the view of one Never-Trump Republican, the prosecution of Trump may make it worse. 

The 2016 Clinton Campaign inspired the creation of the Steele Dossier, a fake compilation alleging close collaboration between Donald Trump and the Russians.  The Obama-Biden administration’s Justice Department officials knew it was fake from early on, but a) permitted the FBI’s “Crossfire Hurricane” investigation and b) continued the Mueller Investigation from May 2017 to March 2019.  FBI officials high and lower who were supervising the investigations displayed a hostility toward Donald Trump.  They broke a number of rules–always to Trump’s disadvantage–in the course of the investigations.  It isn’t Trump supporters who say this.  It’s the Inspector General of the Department of Justice. 

President Biden’s Justice Department reportedly dragged its feet on beginning an investigation of Donald Trump’s effort to hold onto power.  Then, with Republican primary season looming and Trump running even with Biden in opinion polls, the Justice Department moved with lightning speed to indict Trump.  Furthermore, the federal indictments relating to Trump trying to stay in power involve “novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.”  That is, it’s far from being a slam-dunk and it is easy to interpret as specious.    

Then, “honesty is the best policy” has never held an unchallenged sway in American politics.  (Doesn’t matter what my Mom thought should be the case.)  Donald Trump is being charged as an extreme example of behavior that is not uncommon.[2]    

In contrast, the Biden Justice Department had been gored in recent weeks, by IRS whistleblowers who have testified under oath, that the Justice Department dragged out its investigation of President Biden’s wayward son until the statute of limitations had expired on the most serious charges, and had obstructed searches and interrogations.  Only the glare of media criticism from the Republicans caused the seams in the “plea bargain”—in which the government did all the giving and Hunter Biden all the getting—to come un-stitched. 

Does any sane person want a large share of the electorate saying that “The law for the President’s enemy works one way; the law for the President’s son works another way”?    

If American politics was not polarized and poisoned, the institutional problems could be absorbed and dealt with.  In current conditions, however, the prosecution of Donald Trump “may well have terrible consequences beyond the department for our politics and the rule of law.”  Tit-for-tat investigations leading to ever more dubious special prosecutors pursuing ever more dubious prosecutions could bend the legal system to the worst elements in politics.  (One of the things that brought Zelensky to office as president of Ukraine was the public revulsion against the subordination of the judicial system to competing political factions.)    

Jack Smith may see the prosecution of Trump as “protecting democratic institutions and vindicating the rule of law”; but “American democracy and the rule of law [may be], on balance, degraded as a result” of that prosecution. 

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[1] Jack Goldsmith, “The Prosecution of Donald Trump Could Have Terrible Consequences,” NYT (on-line), 8 August 2023.  On Goldsmith, see: Jack Goldsmith – Wikipedia 

[2] There is much to criticize in the actions of Adam Schiff as he investigated, then prosecuted, and then investigated again Donald Trump, all in the shadow of the end of Diane Feinstein’s time as Senator from California.