Since I was a sophomore at Yale College in 1976, I have studied the process by which democracies die and turn into dictatorships. One of the main causes of the death of democracy is the criminalization of political disagreements. While politicians love being able to view their opponents not only as bad people but also as crooks, this is a temptation that must be avoided. Imprisoning people you cannot beat in free and fair elections subverts democracy and has led to dictatorship in many democracies.
It has been just 231 years since the French Revolution’s reign of terror sent 50,000 people to the guillotine, including former King Louis XVI and his wife Marie Antoinette. This situation inevitably led to a Napoleonic dictatorship. Americans must resist at all costs along this same dangerous path.
In his State of the Union address last night, President Biden presented himself as the defender of democracy who would like to imprison former President Donald Trump. I criticized President Trump’s behavior on January 6, 2021 in searing terms and argued that his second impeachment should end in a verdict of disqualification from holding office in the future. But I specifically said then, and continue to believe now, that no former president of the United States should ever be sent to prison because of the effect it would have on 35 to 40 percent of the U.S. population. revere a particular president who may have committed a crime. President Gerald R. Ford’s best and most memorable act in office was his simultaneous pardon of President Richard M. Nixon and Vietnam War-era draft dodgers to heal the country from the poisonous political atmosphere of the late 60s and early 70s.
Despite this, the Biden administration is currently criminally prosecuting Donald Trump for crimes that would lead to Trump’s incarceration, where he could easily be killed by other inmates. Trump then compared himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putting, who was recently assassinated in the prison where he was being held for the crime of running against Putin when he was running for re-election. Even more offensive, Trump is being prosecuted by an unconstitutionally appointed special counsel instead of a Senate-confirmed U.S. attorney who has been designated as a federal special counsel. The reasons why this is unconstitutional are explained in meticulous detail in a law review article written by myself and Professor Gary Lawson, Why was Robert Mueller’s appointment illegal? 95 University of Notre Dame Law Review 87 (2019). We also made the same arguments in numerous amicus briefs on the unlawful appointment of Jack Smith as Special Counsel, which we filed in 2023 and 2024 with the U.S. Supreme Court, the U.S. Court of Appeals for the D.C. Circuit, and at the United States Supreme Court. Florida District Court before which Trump is being prosecuted by Jack Smith.
If President Biden was truly serious about supporting democracy, he should also sue New York State Attorney General Letitia James in her highway robbery civil lawsuit for $450 million in civil fraud fines and penalties, which coincidentally he’s draining Donald Trump of all his money just as the national presidential election is about to begin, and he needs the money. This is a vile abuse of the legal system, which represents a direct threat to democracy.
Add to all this the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from office, and the “crime” of which he is plausibly guilty. Instead, the Biden administration waited nearly two years to prosecute Trump for his behavior on January 6, 2001, finally filing dubious charges and all but guaranteeing that any criminal trials would take place in the middle of the presidential election, as is happening now. Joe Biden and Merrick Garland’s claim to depoliticize the Department of Justice is nothing more than a fraud against the American people. A serious attorney general would have appointed a special counsel of the United States to investigate Trump for violating the Insurrection Act at 12:01 on the afternoon of January 20, 2001, and such a serious attorney general would have made it clear that he had not asked for prison time but only disqualification. from holding positions in the future. Trump should, at most, have been treated as former President Richard M. Nixon was.
Former President Trump and House Republicans are just as guilty of criminalizing politics as the Biden administration is. They hounded Hunter Biden, a sad, middle-aged drug addict, with countless calls for criminal prosecution. While many of these complaints have some merit, and while I believe Hunter Biden has committed crimes, I think he should be heavily fined and not imprisoned because of the rule that does not criminalize political disagreements. Former President Trump has also threatened to use the Justice Department as a weapon against his political enemies if he is elected president in November.
It’s quite understandable, given everything Democrats have put Trump through, that the former president feels the same way he does, but he should turn the other cheek and not seek revenge. Trump needs to restore democracy in the United States, and bringing partisan criminal prosecutions will not accomplish this goal. In 2016, when Trump called for jailing Hillary Clinton for her domestic use of a private server for classified information, I wrote in opposition to the prosecution of Hillary Clinton. As Trump lived to find out, prosecutions for mishandling classified documents are largely a double-edged sword, now being used completely incorrectly against Trump himself.
Former President Barack Obama began this recent descent into the criminalization of politics when his Department of Justice, for entirely specious reasons, launched a secret criminal investigation into Trump’s 2016 presidential campaign, when he was still just a candidate for office. The behavior of Obama’s FBI was reprehensible, as was the absurd investigation by Mueller’s special counsel that he led.
It takes two parties – Democrats and Republicans – to begin the process of criminalizing politics, and it will take both parties to stop it. The media, academia and the judiciary should unite and do this country’s democracy a great favor by putting an end to the criminalization of political disagreements, which threatens to become like the French revolutionary reign of terror. Our constitutional democracy, founded 235 years ago, has never been more in danger.