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Sunday, February 28, 2016

Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).

Here's an ethical hypo that isn't really a hypo at all.  Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.

Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute?  Even in an election year?

I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue. 



edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.

Posted by Paul Gowder on February 28, 2016 at 12:07 PM in Criminal Law, Law and Politics | Permalink


It’s sad to see your biased comments on what should be merely an examination of the damage to the republic by political motivated investigations

Posted by: Charles | May 20, 2021 6:19:22 PM

I agree with many of the comments above and the USAM injunction against political considerations in prosecutorial discretion decisions. The goal needs to be to let the chips fall where they may. But there is a democracy cost to prosecution of political candidates and office holders. Like impeachment, it functionally removes people seeking, or holding, the imprimatur of voter legitimacy through other processes.

A decision to prosecute near (before or after) an election will always be controversial. Just ask Les AuCoin who lost to Bob Packwood days before charges of Packwood's sexual misconduct came to light. But people had enough confidence in the nonpartisan, evidence-following prosecution to absorb that political proximity.

To the extent we have a problem along these lines, it lies with our political culture rather than DOJ practices or policies. Frustration about years of 50/50 America, a choice by one party to use obstruction of government as a platform, and other polemical factors are contributing to increasing calls to criminalize political disputes. (Think Alien and Sedition Act era of *goodwill*). I spent years defending two White Houses in DOJ investigations, politically fueled civil suits, and congressional investigations. It's toxic for our political discourse that people feel empowered to call Hillary Clinton a "felon" with impunity on the campaign trail and--all my horror about Trump notwithstanding--removing him from the political battlefield by criminal process would be further damaging to the Republic.

We need to focus on perpetuating professional DOJ culture and insulating the Department from improper political influences rather than giving DOJ a red or green light for prosecutions in an election year. That said, democracy costs ought to be a significant factor in the exercise/restraint of discretion, especially in remotely close cases.

Posted by: anonaconda | Mar 2, 2016 2:18:21 PM

Just an FYI: the United States Attorneys Manual forbids a prosecutor from considering a person's political association or personal beliefs (among other things) when deciding whether to implement charges.

See USAM 9-27.260 - Initiating and Declining Charges—Impermissible Considerations

Moreover, the prosecutor is supposed to possess more than bare probable cause when he seeks a grand jury indictment. Instead, she should select only those charges she can prove beyond a reasonable doubt if challenged at trial. See USAM 9-27.300 - Selecting Charges—Charging Most Serious Offenses

I have yet to see anything in the news that would place Donald Trump the man in the ballpark of "beyond a reasonable doubt" guilty under USAM 9-27.300. Besides potential statute of limitation claims, Trump might well raise men's rea defenses that he was unaware of the details of this operation, assumed based on legal advice that it was fine to call the school a "university" etc.

One could say the USAM's conservative charging approach is aimed primarily at protecting the institution of the United States attorney. By demanding that prosecutors avoid weak and potentially pretextual prosecutions, it protects them from attacks on their legitimacy.

Posted by: Miriam Baer | Feb 29, 2016 7:42:06 AM


I get that is your claim that a candidate's wrong political views should figure into the calculus of whether, and when, and how vigorously, to prosecute. But it does not follow from your arguments. My point is that I disagree with your big claim even though I have no quarrel with some of the arguments you are making.

If one takes my position, one can still respond that running for high office does make one fair game (a US Attorney can legitimately give more priority to candidates for high office than non-candidates, just not which side the candidate takes). One can still respond that one should not receive de facto immunity by running for president (again, no immunity exists if the US Attorney would prosecute). And, to be most concrete, there is nothing that would be necessarily politically motivated about prosecuting Trump--if the US Attorney would have done it anyway even if Trump held the same political views as Bernie Sanders. But I have extreme problems if US Attorneys decide solely based on what they regard as awful political views to prosecute or prosecute more vigorously. If you endorse that principle, the Republican House will impeach Barack Obama tomorrow for speeding on the freeway or one of the several federal felonies a day that almost every citizen in the country commits.

Posted by: TJ | Feb 29, 2016 1:28:26 AM


The fact that the person has the wrong (and in this case profoundly depraved) political views might be a good reason to prosecute now rather than later, to make the investigation a high priority, to choose to expend resources on this prosecution rather than some other equally worthwhile prosecution.

Posted by: Paul Gowder | Feb 28, 2016 9:13:56 PM

Paul, I think you are missing the "motivated" part in "politically motivated prosecutions." If someone has committed a bunch of serious felonies, then I would want the US Attorney to prosecute regardless of the person's politics. If someone has committed a bunch of serious felonies and was also a leading presidential candidate, I would again want the US Attorney to prosecute regardless of which party the person was a candidate for. That is not "politically motivated," or at least it is not partisan/viewpoint motivated.

A politically motivated prosecution, to me, is different. It is saying that you think the US Attorney would or should prosecute if, and only if, the person has the wrong political views, and should not (or at least would not) if we did not know the person's political views. None of your hypotheticals are really about that situation.

Posted by: TJ | Feb 28, 2016 7:10:55 PM

Anyway, anyone able to put forth a serious run like Trump should be a serious enough public figure that the added aspect of running office shouldn't be necessary as a push to prosecute. Plus, the "malum in se" qualifier alone suggests they should warrant prosecution anyway.

The added running for election rule as others note is open to partisan abuse, including by subconscious bias and appearance thereof. That can ironically HELP some miscreants.

Posted by: Joe | Feb 28, 2016 4:31:08 PM

"Between 2005 through 2011"

A reference is made to something he did FIVE years ago.

At best, doing prosecutions or even major investigations during campaigns seriously is open to problems (the matter arose in the controversy of prosecutors Bush dismissed over what was seen as illegitimate political reasons; at least one of them was influenced by a rule avoiding that sort of thing).

I am not inclined to get into that possible morass for something that this stale. It very well might be something he should be prosecuted for. But, it can wait a bit longer. The "opportunity to crush Trump’s [deemed bad, but so are others; cannot be a "racist" only rule] presidential campaign with a federal indictment and prosecution" is the whole point here. That can too easily be abused.

As is often the case, it is not the miscreant that I'm worried about here, but larger principles. If he was so horrible, why wasn't he prosecuted before now? He is not getting "immunity" -- he could have been prosecuted before & he can if someone else wins. If he wins, and the people can be told about this, we have a lot more to worry about.

Posted by: Joe | Feb 28, 2016 4:25:42 PM

One potential limiting principle would be existing generally applicable criminal justice policy. For example, DOJ has guidance on the use of prosecutorial discretion in wire fraud cases:

"Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct."


Those kinds of policies seem a pretty good first cut at the difference between fair play and not fair play: if it would be worth prosecuting per official policy if a non-politician did it, it is worth prosecuting if a politician does it:

Posted by: Paul Gowder | Feb 28, 2016 2:08:50 PM

This would snowball and get out of hand quickly. Presidential races would soon become a races to bring charges against the opposing candidate (or, in the event that there is no offense to prosecute, bang the drum on "suspicious activity" a la John Connelly). Then, presidents would be decided in the courts.

As far as Trump goes, the best hope is that, should he win the nomination and the election, the state electors will prove useful and not actually cast their votes for him. That would certainly be interesting.

Posted by: YesterdayIKilledAMammoth | Feb 28, 2016 2:01:13 PM

Paul, I'll have to think more about it, but my instinct is that the vagueness of your standard is a significant problem. Confirmation bias being what it is, I would guess that a person's view of what counts as serious, if left vague, would depend a lot on whose ox is being gored. For example, in the hands of the Supreme Court, the idea of fraud, which at first might seem like a simple concept, ends up being a surprisingly flexible and hard-to-pin-down idea. And what if the candidate had defrauded a person of a very small amount of money, like $1? Do you say fraud is categorically serious, or do you say that only frauds involving a lot of money are serious? And what is the evidence is plausible but the case isn't super-strong, such that the opposite-party prosecutor thinks that the dangerous and scary candidate on the other side *may* have committed the crime but isn't sure? If there is just barely probable cause, should a prosecutor bring the case anyway, knowing that it may alter the election outcome no matter how the case goes (because the case won't be resolved until after the election)? Maybe there's a way to confine your approach so it is not just turned into politics by other means, but that's the concern I have.

Posted by: Orin Kerr | Feb 28, 2016 1:59:27 PM

I don't think we need a binary serious/nonserious distinction. To be sure, there's a continuum with a big fuzzy middle, but there are at least a few crimes that we all recognize as clearly on the beyond the pale side.

At a minimum, the beyond the pale category includes:
- violent crimes
- bribe-taking in office
- defrauding people out of their money

Posted by: Paul Gowder | Feb 28, 2016 1:37:41 PM

Paul, doesn't the claim hinge on your view of what counts as a serious crime versus a not-so-serious crime? Consider six offenses:

1) Perjury
2) Mishandling classified e-mail
3) Stealing classified documents
4) Drunk Driving
5) Wire fraud
6) Accepting illegal campaign donations

Which ones of these are serious and which are not serious?

Posted by: Orin Kerr | Feb 28, 2016 1:30:38 PM

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