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Monday, August 15, 2022

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

The idea that DOJ should have a larger amount of evidence than what would amount to probable cause before seeking a search warrant of a former president doesn’t seem like a particularly radical argument to me.  Probable cause is not a difficult threshold to meet.  There is reason to believe that prosecutors and law enforcement already tend to require more than just probable cause in order to search or arrest a high-profile subject; instead, they want overwhelming evidence that a crime was committed or that evidence of that crime is likely to be found.  To be clear, law enforcement likely use this heightened evidentiary standard in cases involving high-profile subjects because they know such cases will garner more public attention, and they don’t want a case to fall apart when the public is paying attention. 

For what it is worth, I don't think that those calling for a heightened standard are saying that a higher evidentiary threshold is needed because the news accounts suggest that the FBI had ample evidence that they would find the documents they sought in the search warrant, and the inventory from the search indicates that they did find such documents.

So that means the call for heightened scrutiny is likely an argument that not all crimes should give rise to an investigation or a search of a former president.  The idea that someone should essentially be immune when it comes to some crimes may seem controversial—at least until people are made aware of how much relatively innocuous behavior is actually criminal.  Congress and state legislatures pass dozens of new criminal laws every year, some of which contain sweeping language.  (If you are curious about how silly some of those laws are, you should check out Crime a Day.)  To the extent that the “heightened scrutiny” argument is merely an objection to overcriminalization in specific circumstances, then it seems unremarkable.  But again, the argument needs to be spelled out in more detail because specifying which crimes should remain unenforced is necessary to assess the argument. Should former presidents be exempt from prosecutions for mishandling classified information?  Tax fraud?  Burglary?  Shooting someone on Fifth Avenue?

The biggest flaw with both the type of crime argument and the amount of evidence argument is that they don't just apply to former presidents:  Why should these heightened standards apply only to Donald Trump and not the rest of us?  Probable cause is an incredibly low standard to meet. So why is that a good enough standard for searching or arresting ordinary citizens?  And why isn’t the overcriminalization critique an argument for stopping all prosecutions of such crimes, not just prosecutions of those who were elected to national office?

Some of the commentators arguing for heightened scrutiny have suggested that their argument is based on a perceived danger that former presidents will be targeted for illegitimate reasons—specifically, they will be targeted in order to help the political fortunes of those who are currently in office.  But personal and political grievances are not limited to former presidents; they exist in communities across the country.  For example, when I was doing research for my book on plea bargaining, I reached out to the lawyers of a man who had been pressured into pleading guilty for a crime he hadn’t committed.  The lawyers told me that their client was scared to talk to me:  Even though he had been exonerated and his conviction reversed, local police had made it known that they still thought him guilty, and so the man was worried about doing anything that would draw their attention and encourage them to use their power to harass him.

You would think that judges could stop police and prosecutors who use silly laws or low evidentiary threshholds to harass people.  But when faced with evidence that law enforcement used their powers to arrest and search as a pretext, or have used the powers to punish individuals for extralegal reasons (like exercising their right to free speech), courts have refused to intervene.  But those pushing for heightened scrutiny either don’t know or don’t care that overcriminalization and weak evidentiary thresholds allow abuse of ordinary citizens.  They only seem concerned that people who have held positions of immense power are shielded from possible abuse of the criminal justice system.

Of course, the people who are arguing for heightened scrutiny don’t frame their argument in those normative terms.  Indeed, some don’t even say that former presidents should have additional protection.  Instead, they suggest that such protections are necessary for political reasons—e.g., that without heightened standards the political allies of former president Trump will see DOJ's actions as illegitimate political persecution, and they may even resort to violence.

I’m not sure that it is wrong to say that public officials must think about politics when it comes to criminal investigations and prosecutions.  After all, our criminal justice system gives enormous amounts of discretion to law enforcement and to prosecutors, and it largely regulates that discretion through direct elections or political appointments and removals.  In other words, despite repeated claims to the contrary, investigations and prosecutions are—on some fundamental level—political.

But I don’t think that the people who are making the heightened scrutiny argument fully appreciate the implications of adopting an explicitly political approach to investigations and prosecutions.  Specifically, I don’t think they appreciate that this principle—that political considerations should drive the exercise of criminal justice powers—also legitimates efforts by progressive prosecutors to stop enforcing low-level crimes, to stop cycling people of color and people from low-income communities through jails and prisons, and to refuse to enforce highly-politicized offenses such as abortion-related laws.  The prosecutors who have pursued such policies have done so with significant political support from within their communities, but with great pushback from outside of those communities.  For example, earlier this month, Ron DeSantis removed a local prosecutor from office on the basis of statements that the prosecutor wouldn’t prosecute people for abortion-related crimes.  DeSantis claims that these statements are evidence of neglect of duty and malfeasance.  Would an explicit policy of eschewing criminal investigations and prosecutions of former presidents also be neglect of duty or malfeasance?  And if not, why not?

I also don’t think it is a good idea for those arguing in favor of heightened scrutiny to focus on the violence that President Trump’s followers might wreak on this country.  For one thing, I think that some Trump supporters will resort to violence no matter what happens (e.g., if their candidate loses a fair election).  In addition, I think that argument tells people that being seen as unpredictably violent is the way to get preferential treatment from law enforcement. Think, for example, about the violence and property damage that occurred during the racial justice protests of 2020.  The logical conclusion of the heightened scrutiny argument is that, if there is enough violence of that sort, then police and prosecutors will have to change their practices and stop relying on low evidentiary thresholds and bloated criminal codes when policing poor communities of color.  Maybe the people who are arguing for a heightened standard for former presidents would also endorse a public and explicit change to what crimes are enforced and the evidentiary thresholds being used in poor communities out of fear that more violence or property damage could occur—but I’d like to see them say so if it is true.

The truth is, the search at Mar-a-Lago has forced people who usually think about politics and presidential power to grapple with the fact that we don’t require much from law enforcement before they can search and arrest members of the public.  The former is the stuff of nationally syndicated pundits and constitutional law professors; the latter is the territory of criminal justice practitioners, advocates, and crim law professors.  Now that the country is paying attention to how much power and discretion is given to officials in the criminal justice system, perhaps it is time to address that enormous and largely unchecked power on its own terms rather than just worrying about whether that power will be directed at a former president.

Posted by Carissa Byrne Hessick on August 15, 2022 at 10:19 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink


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Posted by: EEIND | Sep 12, 2022 11:07:17 AM

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Posted by: DC News USA | Sep 10, 2022 3:29:46 AM

The discussion is interesting and it is important to think about the power prosecutors have, including discretion, and so on.

It often is not that hard to get a warrant and sometimes the process has problems. There is a lot of litigation about that.

There is also a basic bottom line that Trump is far from a typical case, and from what I can tell from the coverage and documents available so far, the mostly one-sided concerns from Republicans about the injustice of it all, the concern for abuse of power, is specious.

It is an insult to real concerns to suggest Trump was a victim here.

Posted by: Joe | Aug 16, 2022 12:40:24 PM

You are certainly correct that the issue is not simply whether the search warrant met the minimal legal requirements to be valid.

Moreover, despite all the focus on seeing the affidavit supporting it, any such disclosure would not answer many of the most important questions.

To see why this is, and why the best approach might be the appointment of an independent special counsel as required by law, see:

Releasing Search Affidavit Will Not Solve Problems;
Prosecutorial Bias Would Remain, As Would Questionable Decisions

Posted by: LawProf John Banzhaf | Aug 15, 2022 4:00:36 PM

Great post.

The post mentions indeed Wheren v. US. Such ruling, is really central to the issue presented here in that post. There, the petitioners (black persons) claimed, that the subjective intent of police officer, is highly relevant for arrest or seizure, and surly when dealing with minor traffic violation. Otherwise, police officers may stop and search people at random. Based on capricious discretion ( like race, color etc...). For, when dealing with traffic violations, every move, every step of every driver may become subject for search and seizure etc.... I quote:

They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given.

End of quotation:

But, the court has absolutely rejected such notion. Subjective intent is irrelevant. Yet, speaking of the search in Alago, the court emphasized that there is room for certain balance between the nature or magnitude of the offence, and the means taken for performing or executing it. I quote:

Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests-such as, for example, seizure by means of deadly force, see Tennessee v. Garner,471 U. S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas,514 U. S. 927 (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U. S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U. S. 753 (1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact.

End of quotation:

So, one may ask now:

Whether such search as been done, is justified. On one hand, they broke his safe. Bursting in to his private house, without and prior notice or announcement. Knowing that huge attention would be given or reported after that. On the other hand, no doubt, highly classified information was stored there in the house.

More details would surly clarify more.


Posted by: El Roam | Aug 15, 2022 1:08:24 PM

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