Should the letter of the law be overlooked if it means preserving the rule of law?
I’m talking about concerns by Democrats and Republicans alike that the piling on of investigations against former President Trump for alleged violations of multiple state and federal laws may backfire by creating a martyrdom that could arouse the sympathies of swing voters, incite his base and bring him back for a second term that makes the first seem blasé.
For much of the year, tiny cracks have spread across Trump’s Teflon. Republicans seem more open to considering other presidential candidates; and those potential candidates seem to be more willing to poke, carefully, at his vulnerabilities. The damning testimony of Trump’s own former allies to the Jan. 6 Committee is sticking, So, I have been asked, why redeem him by unifying Republicans around the narrative that he’s the victim of a politicized Justice Department?
Let’s dispense with the argument about inciting the base. How much more incited could it get after many of its members condoned or participated in the Jan. 6 attack on the U.S. Capitol? Folks, that fuse is lit and inextinguishable. You can’t calm the zombie apocalypse.
The better question is whether the narrative that Trump is being persecuted rather than prosecuted will somehow lure more moderate voters back into his camp, the ones in battleground states who voted for Trump in 2016 then switched to Biden in 2020. The next election largely rests with them.
That’s the concern of one friend — an ideological conservative who donated generously to Sen. John McCain’s (R-Ariz.) presidential campaign, takes a hardline against Democrats such as Rep. Alexandria Ocasio-Cortez (D-N.Y.) but twice voted against Trump.
When I represented him in Congress, my friend was an outspoken (sometimes acerbic) critic of my positions as a member of the House Democratic leadership. He often reminds me that being a conservative means supporting change when it is incremental, measured and modest, rather than the policy wrecking ball of the Trump administration. He wants Trump to disappear from the political theater so he can return to backing conventional Republicans who support free markets and the rule of law.
But the recent raid by the FBI on Mar-a-Lago bothered him. In an email, he wrote, “From a Machiavellian perspective I find it somewhat confounding – at least the timing. If a real smoking gun is found, then Trump is greatly discredited, boosting the fortunes of moderate Republicans. If no smoking gun is found, then Trump and his acolytes get an enormous public relations boost.”
One pro-Trump commentator, Jack Posobiec, was less nuanced: “Trump just won the 2024 primary,” he told the Associated Press after the warrant at Mar-a-Lago was executed.
Let’s forget, for the moment, that a federal judge approved the search based on the potential criminal misconduct. Or that FBI Director Christopher Wray served as a high-ranking official in a Republican-led Justice Department. Or that President Clinton’s national security adviser, Sandy Berger, pled guilty, paid a $50,000 fine and received probation for a not too dissimilar offense: removing classified documents from the National Archives in 2003 to prepare for his testimony to the 9/11 Commission.
The political question is this: Should law enforcement allow partisan optics to color their judgements about whether to proceed with inquiries, investigations or prosecutions?
What if my friend is correct? What if this investigation and the next one and the one after that generate a narrative among swing voters that Trump is not venal but victim? What if scrupulous obedience to upholding the letter of the law does, in fact, backfire, and abets the election of an unscrupulous, lawless administration?
Forget the optics. I go back to Henry of Bracton, a 13th-century cleric and jurist, who wrote, “The king himself ought to be subject to God and the law, because law makes him king.”
Or, more familiarly, my personal political hero, Theodore Roosevelt. In his third annual address to Congress in 1903, he stated: “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”
Still, the extraordinary nature of a raid on the home of a former president does require at least a public explanation as to why the materials in Trump’s safe merited a search warrant. In a world of conspiracy theories, some clarity is vital.
The rule of law demands not blind but careful obedience to the letter of the law. More importantly, it undergirds the notion of justice itself. Once we begin making exceptions based on electoral optics, no matter how worthy they may seem, we have entered the realm where both law and justice become soft, spongy and as credible and transient as the most recent poll.
Steve Israel represented New York in the U.S. House of Representatives over eight terms and was chairman of the Democratic Congressional Campaign Committee from 2011 to 2015. He is now director of the Cornell Jeb E. Brooks School of Public Policy Institute of Politics and Global Affairs. Follow him on Twitter @RepSteveIsrael.