Facing the music: Terrible fallout of Trump’s prosecution

By JACK GOLDSMITH

NEW YORK: It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Trump’s many transgressions. Smith’s indictment outlines a factually compelling but far from legally airtight case against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Trump loses), it will be a historic disaster.

But even if the prosecution succeeds in convicting Trump, before or after the election, the costs to the legal and political systems will be large.

There is no getting around the fact that the indictment comes from the Biden administration when Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Biden, the Democratic Party’s probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Trump for a year and then rushed to indict him well into GOP primary season.

The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Trump’s connections to Russia in the 2016 general election.

Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation.

The discredited Steele Dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.

And then there is the perceived unfairness in the department’s treatment of Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation.

Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.

These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Trump. They are the circumstances that for very many will inform whether the prosecution of Trump is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances, and thus amplify their impact.