Imagine for a moment the design of the perfect lawfare prosecution. Such would necessitate the intersection of legal ambiguity and ethical murkiness. It would require the perfect combination of an ambitiously sloppy district attorney, morally casual witnesses, an absence of real victims, and a compromised judge.
The assembly of any two of these pieces would be extraordinary in our justice system. Completing the puzzle would be devastating to it.
Specifically, the perfect lawfare prosecution would first need a weak, but ambitious, prosecutor. Think a Harvard guy in a bad suit. The DA would have a history of exercising prosecutorial discretion poorly such that he has a history of charging bodega clerks or subway passengers with homicide, despite overwhelming evidence they were defending themselves and others from a violent, deadly attack.
For further spite, this DA might have a history of releasing without bail five illegal immigrants who beat two police officers, only to watch them give America the “double bird” as they left his jail on their supposed recognizance. He would have to be so incompetent that other jurisdictions would refuse to extradite violent criminals due to their concerns that the DA would just release them without bail, incurring a threat of public safety.
Second, the perfect lawfare prosecution would need the weak district attorney to disregard the declinations of the same lawfare prosecution by his predecessor and other serious federal agencies (e.g., the Federal Election Commission or the U.S. Attorney’s Officer for the Southern District of New York). The DA would disregard entirely the erosion such a prosecution would undoubtedly have on the trust and confidence that Americans have in our criminal justice system.
Next, there would have to be a vague charging instrument that fails to state a discernible offense. The DA would ignore legal principles like due process and maxims like notice pleadings or the Rule of Lenity and instead be willing to indict on novel and untested theories. The more counts, the better. And there can’t be any discernible victims either.
The perfect lawfare prosecution would then weaponize local court rules and “choose” a judge with a history of ruling against the target’s businesses and cohorts. It would be great if the judge had made disparaging extrajudicial comments about the defendant and financially supported the defendant’s enemies.
The judge would have to be unmoored by the canons of the bench and refuse to recuse, even issuing a gag order to prevent further exposure of the judge’s conflicts of interest. Not even a pending U.S. Supreme Court decision, that could immunize the defendant from prosecution entirely, could convince the judge to pause the case.
Finally, in the perfect lawfare prosecution it matters not that one of the witnesses is a convicted felon whose truthfulness was questioned by a federal judge just weeks before trial. Confidence in the case cannot wane just because the other primary witness is a former porn star who was cast out of the bottom of the industry years ago.
This all seems impossible, right?
Unfortunately, the odor of mendacity has wafted north and the perfect lawfare prosecution has somehow assembled neatly in a single Manhattan courthouse. The jury trial in State of New York vs Donald J. Trump begins this week. It is a masterclass in prosecutions brought by ambition and bias. This case will not serve justice but serve only to further erode trust and confidence in our justice system, which is the cornerstone of due process. We would expect the prosecution of a former President of the United States to be brought forth by serious people with serious evidence of serious charges. Instead, the perfect lawfare prosecution of President Trump will present a porn star, a perjurer, a weak DA in a poorly fitted suit, and all before a judge with a serious appearance of impropriety.
This isn’t justice.
This isn’t due process.
This is the perfect lawfare prosecution…and it is anything but perfect.
Jay Town is the former U.S. Attorney for the Northern District of Alabama, appointed by President Trump. He is currently the Vice President and General Counsel at Gray Analytics.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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