Following Donald Trump’s conviction in a Manhattan courthouse last week on 34 felony counts, some Republican leaders are advocating to fight fire with fire. The problem with that strategy, of course, is that you risk burning down the entire system.
Trump supporters have been calling for extreme retaliation. The GOP strategy represents a warped and dark vision of our legal system that undermines the rule of law.
The GOP strategy represents a warped and dark vision of our legal system that undermines the rule of law.
Rep. Jim Jordan of Ohio announced that he will demand Manhattan District Attorney Alvin Bragg appear before the House Judiciary Committee to testify about “the unprecedented political prosecution” of Trump. Jordan has also suggested cutting funding from the FBI and federal and state prosecutors who are “involved in lawfare,” a new favorite watchword on the right that describes the weaponization of the rule of law.
These calls for revenge are not simply about punishment. Some go further by calling for prosecutors to turn the tables and target Democrats with presumably unjust criminal charges.
Sen. Marco Rubio of Florida posted on X a video clip of President Joe Biden being asked about Trump’s claim that he is a “political prisoner” following his conviction. Rubio’s post stated that Biden is “a demented man propped up by wicked & deranged people willing to destroy our country to remain in power. It’s time to fight (fire emoji) with (fire emoji).”
Our current President is a demented man propped up by wicked & deranged people willing to destroy our country to remain in power
— Marco Rubio (@marcorubio) May 31, 2024
It’s time to fight 🔥with 🔥 pic.twitter.com/InzXGdWCXm
Former Trump adviser Stephen K. Bannon claims it is now time for Republican prosecutors to prosecute members of the rival party. “There are dozens of ambitious backbencher state attorneys general and district attorneys who need to ‘seize the day’ and own this moment in history,” he said in a text message to The New York Times.
Trump adviser Stephen Miller called for “every House committee controlled by Republicans” and “every Republican D.A.” to investigate Democrats. “Every facet of Republican Party politics and power has to be used right now to go toe-to-toe with Marxism and beat these Communists.”
As all Americans should know, vengeance is an improper motive in our criminal justice system. Prosecution based on politics would distort the very concept of justice. Such naked calls to action from GOP leader delegitimize our criminal justice system.
To be sure, our criminal justice system is not perfect. Law enforcement officers and court officials make mistakes and abuse their power, in deadly and devastating ways. Biases exist. But the rules prohibiting politically motivated prosecutions are clear.
The Justice Manual, the policy guide for all federal prosecutors, leaves no wiggle room. The manual’s “Principles of Federal Prosecution” state: “In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government may not be influenced by the person’s… political association, activities, or beliefs.” Prosecutors are governed by the Justice Department’s Office of Professional Responsibility and the disciplinary authorities of the states where they are licensed as members of the bar. State prosecutors are held to similar professional standards. Violations can result in termination, suspension, disbarment, fines or even imprisonment.
In federal court, a grand jury of citizens must find probable cause that a crime has been committed by a particular defendant before an indictment is filed. The offense must be a violation of statute that has been passed by the legislative body of the particular jurisdiction, not some imaginary crime. State courts use similar processes to protect against overzealous prosecutors. A defendant may file a motion asking a judge to dismiss a case prosecuted for arbitrary reasons. A jury must unanimously find beyond a reasonable that the crime was committed. Courts of appeals review the charges to ensure that the prosecution was based on facts and law.
According to John C. Yoo, a conservative law professor, prosecutions of Democrats are necessary to delegitimize the prosecutions of Trump. So, if these checks and balances protect people from baseless prosecutions, what purpose would be served by Republican threats to target their political opponents? One goal of this strategy seems to be to destroy the very concept of accountability for criminal misconduct by public officials. According to John C. Yoo, a conservative law professor, prosecutions of Democrats are necessary to delegitimize the prosecutions of Trump. “In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents,” Yoo wrote. “Only retaliation in kind can produce the deterrence necessary to enforce a political version of mutual assured destruction; without the threat of prosecution of their own leaders, Democrats will continue to charge future Republican presidents without restraint.” Indeed, last year Trump promised that if elected again, he would appoint a “real special prosecutor” to go after Biden and his family, calling him “the most corrupt president in the history of the United States of America.” Calls to impeach Biden despite an absence of evidence seem designed to serve the same purpose — to delegitimize impeachment as a tool of accountability. If every president gets impeached, then impeachment becomes meaningless. This strategy echoes life in Russia, where corruption is normalized. According to Benjamin Rhodes, deputy national security adviser during the Obama administration, this bit of tradecraft is used by President Vladimir Putin. In his book, “After the Fall: Being American in the World We’ve Made,” Rhodes writes that Putin works hard to convince his people that everyone is corrupt. And if all public officials are corrupt, Rhodes writes, then “Russians might as well have a strong, competent leader who shares their grievances and sense of national greatness.” Here, the strategy seems similar. Even if politically motivated prosecutions ultimately fail, just bringing charges would be enough to tilt the playing field. If the public can be convinced that all prosecutors are corrupt partisan actors, then their work may be disregarded as mere political gamesmanship, and Trump’s convictions and impeachments will no longer matter. The result is to give Trump — and other political actors — license to commit all manner of crimes in the future. And perhaps an even more harmful collateral consequence of these efforts is to tarnish public opinion about criminal justice and undermine respect for the rule of law. And if people lose faith in the courts to resolve our differences, they may become inclined to resort to vigilante violence to resolve disputes with brute force. One need look no further than Jan. 6, 2021, to see what happens when citizens lose faith in our institutions and take the law into their own hands. Playing with fire is a dangerous game.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
