Lawfare or Rule of Law

A commenter on my previous post asked a good question:

How do you distinguish rule of law from lawfare?

In our legal system a prosecutor is not obliged to prosecute all crimes, even ones he knows about. If whether crimes get prosecuted depends mostly on how serious they are and how good the evidence is, that's rule of law. The more it depends on whether the person prosecuted is someone the prosecutor or his superior wants to get, the more it is lawfare. An earlier post discussed the problem of selective prosecution and ways it might be reduced.

What is the evidence that it is happening this time?

The clearest case against Trump is for retaining documents. The evidence for selective prosecution is that Biden also retained classified documents, also gave information from those documents to a reporter, and is not being prosecuted. The prosecutors in the Trump case argue, I think correctly, that Trump’s behavior was more extreme in several respects, in particular his refusal to return the documents for an extended period of time.

Biden’s acts were sufficient to violate the espionage act, an offense for which other people have been jailed, so his case is evidence for selective prosecution in favor of high level officials, as is the failure to prosecute George Bush for violating the Foreign Intelligence Surveillance Act by making use of information produced in violation of the act, the failure to prosecute the NSA officials responsible for the violations and the failure to prosecute James Clapper, Director of National Intelligence, for perjury after he lied under oath in congressional testimony. But it is at most weak evidence for selective prosecution of Trump since those criminal acts were arguably less serious, certainly less blatant, than his.

No Harm, 450 Million in Damages

In New York, Trump was sued for inflating the value of properties he used to secure bank loans, found liable for more than four hundred and fifty million dollars in damages. New York has a somewhat odd old law under which a firm can be sued on the grounds that it benefited by fraudulent acts even though nobody was injured; although there might be arguments about the amount of the damages I expect that the Trump organization did indeed give inflated estimates of the value of its properties in order to get better terms on its loans. My suspicion is that doing that is not uncommon in the real estate market, that sophisticated lenders allow for it and it gets prosecuted only when the state authorities have some special reason to go after a firm.

The first and most obvious evidence that this is such a case is that the prosecutor said so:

ALBANY, N.Y. (AP) — Letitia James fixated on Donald Trump as she campaigned for New York attorney general, branding the then-president a “con man” and ″carnival barker” and pledging to shine a “bright light into every dark corner of his real estate dealings.” (AP story, Sept 29^th, 2023)

As a little additional evidence:

The AG's office noted that Trump valued Mar-a-Lago at between $426 million and $612 million on his financial statements between 2011 and 2021. (NBC News story)

If he is being prosecuted for misdeeds that run back to 2011, it is at least curious that the prosecution only started in 2022.

From my earlier post on prosecutorial discretion:

Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s Office for the Southern District of New York was to name a famous person—Mother Teresa, or John Lennon—and decide how he or she could be prosecuted:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.

The, result, however, was inevitable: “prison time.”¹

Civil Damages: The E. Jean Carroll Cases

In 2019 E. Jean Carroll claimed that Trump had raped her more than twenty years earlier. Trump denied it. Carroll sued him for defamation, twice.

Evidence included testimony from two friends Carroll spoke to after the incident, a photograph of Carroll with Trump in 1987, testimony from two women who had separately accused Trump of sexual assault, footage from the Trump Access Hollywood tape and his October 2022 deposition. A verdict in May 2023 found Trump liable for sexually abusing and defaming Carroll, and ordered him to pay $5 million in damages. Trump appealed and made an unsuccessful counterclaim. In July, Judge Kaplan clarified that the jury had found that Trump had raped Carroll according to the common definition of the word.

In September 2023, Kaplan issued a partial summary judgment regarding Carroll I, finding Trump liable for defamation via his 2019 statements. The jury verdict from the January 2024 trial was $83.3 million in additional damages. (Wikipedia)

I don’t know, do not see how the jury could know, whether Carroll’s story was true, but it was a civil case so they only had to decide whether it was more likely than not. But eighty-three million in damages for the offense of denying an accusation of a crime of which he had not been criminally convicted does not look like an unbiased result and the fact that Carroll only accused Trump after he was president of an offense committed more than twenty years earlier suggests a political motive.²

Election Interference

There are two cases charging Trump with crimes associated with his attempt to pretend that Biden’s victory in the 2020 election was fraudulent, one in Georgia, one in DC. A summary of the charges in the latter:

The indictment describes in detail the manner and means by which Trump allegedly conspired to impede and obstruct the collecting, counting, and certifying of votes in the presidential election. These means included an attempt to lean on state officials to subvert the vote; a scheme to organize fraudulent slates of electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin; an attempt to recruit the Justice Department to conduct sham investigations of voter fraud; an effort to convince Pence to obstruct the vote certification proceeding over which he presided; and an attempt to exploit the violence and chaos of the Jan. 6 attack on the Capitol to disrupt and delay that certification proceeding. (Trump Jan. 6 Indictment: The Facts, LawfareMedia)

All of those charges are, I think, true. The question is are they or should they be crimes? It is not illegal for politicians to lie for political purposes, as Trump routinely does. It is not illegal to try to persuade people to take actions based on bad legal arguments. The only thing in the list that is unambiguously illegal was the January 6^th riot and, although it was due to Trump’s rhetoric,³ it is not clear beyond a reasonable doubt, that he is legally responsible.

One of the bits of evidence in the Georgia case is Trump telling the Georgia Secretary of State:

"What I want to do is this. I just want to find, uh, 11,780 votes, which is one more than we have, because we won the state."

My wife’s explanation, from Trump’s point of view:

·      If Biden won the election, Trump is a loser.

·      Trump is not a loser.

·      So Trump won the election.

·      So there must be enough votes missing to change the election outcome, some of them in Georgia

·      Find them

Being irrational is not a criminal offense.

As best I can tell, Trump’s attempt to change the election outcome includes some acts that a jury might conclude were criminal, none so obviously criminal than an honest prosecutor would feel a duty to charge them, none as obviously criminal as offenses for which prominent people were not charged in the past, as per the beginning of this post.

It could be argued, some would argue, that attempting to fraudulently change the outcome of a presidential election is so serious a threat to the democratic system that any judgement calls should be made in favor of prosecution. My own view is that using the control of the legal machinery to punish political opponents — and, in the Georgia case, their lawyers — is a considerably more serious threat to the democratic system, hence that any judgement calls should be made against prosecution.

As some evidence for my view, I note that none of Trump’s attempts actually came close to succeeding, whereas he has already lost several civil cases, including one brought by an elected official of the Democratic party who campaigned on her willingness to prosecute him, and is at risk of multiple criminal convictions in cases now ongoing. I further note that the only plausible way in which his attempt could have succeeded is with the virtually unanimous support of the Republican representatives — and if he had that he could have blocked Biden’s win on January 6^th without doing anything illegal at all, as per my first post in the series.

My View of Two Elections

This is the third, hopefully the last, post I am making connected with the 2024 election; my readers may reasonably be wondering about my own view of both that and the 2020 election, which a lot of the controversy is about.

So far as the current election is concerned, I do not plan to vote for either Trump or Biden. Most of the things both of them want to do are things I don’t want done. The least bad outcome I can see is a president of one party, a congress controlled by the other, hence not much getting done.

So far as the 2020 election I think it is clear that most of Trump’s claims of fraud are bogus; I have seen no evidence of election fraud sufficient to change the outcome. On the other hand, I think it is reasonably clear that Biden’s victory was in part due to unethical, but not illegal, actions on his behalf before the election. The two obvious ones were the change in the timing of the final stage of the vaccine tests, unblinding the results several weeks later than on the original schedule, to make the fact that a vaccine was being approved become public too late to affect the election, and the largely successful effort to pretend, on no evidence, that the Hunter laptop was Russian propaganda and block the New York Post story about it from Twitter.

1. Ham Sandwich Nation: Due Process When Everything Is A Crime by Glenn Harlan Reynolds.

2. In response to an email referencing Trump, Martin [one of the two friends who supported her story] wrote: “As soon as we are both well enuf to scheme, we must do our patriotic duty again…” Carroll responded: “TOTALLY!!! I have something special for you when we meet.” (Politico)

A couple of weeks after the New York magazine article was published, Carroll ran into lawyer George Conway (a Trump critic and husband of Kellyanne Conway), who told her to file a defamation lawsuit and helped her find a lawyer. (Wikipedia)

3. For Kipling’s comment on the same issue more than a century earlier, see Cleared.