Republicans have long been predicting that criminal charges against Donald Trump would lead to Republicans ginning up charges against Democrats out of pure revenge. The prediction, of course, was designed to legitimate it. And now, inevitably, members of the Republican legal Establishment have moved from predicting this turn of events to advocating for it.
John Yoo, the former Bush administration lawyer (who himself escaped prosecution for his role in constructing legal justifications to torture detainees, many of whom turned out to be held wrongfully in the first place), has an essay in National Review arguing for revenge prosecutions. The imprimatur of Yoo, a Berkeley law professor and fellow at two of the conservative movement’s least-insane think tanks (the American Enterprise Institute and the Hoover Institution), underscores the progression of “lock her up” from wild seriously-not-literally Trump-campaign demagoguery in 2016 to party doctrine in 2024.
“Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you,” urges Yoo. “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.”
I agree with Yoo that one of the cases against Trump, the Alvin Bragg prosecution, is weak. That’s not to say Trump is innocent, but that it’s a borderline case that did not need to be charged.
But Yoo is not confining his complaints to the Bragg case. He explicitly denounces all the charges against Trump, including the ones for attempting to negate the election results and for stealing classified documents, repeatedly ignoring or lying in the face of requests to return them, and engineering a cover-up.
There are several problems with Yoo’s argument, beginning with the “age-old maxim” he cites. The saying, derived from the Bible, is “Do unto others as you would have done to you,” not “Do unto others as they have done unto you.” I am not a biblical scholar, but the basic thrust of the teachings the line summarizes is to treat people the way you would wish to be treated, rather than instructing people to take revenge for slights.
Second, Yoo attributes Trump’s prosecutions to “the Democrats”:
Make no mistake, Democrats have crossed a constitutional Rubicon. For the first time in American history, they have brought criminal charges against a former president. For the first time in American history, they have brought criminal charges against the major (and leading) opposition candidate for president during the campaign …
Republicans keep asserting that the Democratic Party, or Joe Biden, collectively decided to throw the book at Donald Trump, but there is literally zero evidence for this. Biden has avoided interfering with decisions by the Justice Department, and the two biggest cases against Trump were brought by Jack Smith, who is a nonpartisan figure respected by both parties.
Third, Yoo’s examples of revenge prosecutions underscore his deep confusion about how the Justice Department has been operating. Here are some things he wants investigated: A Republican DA will have to charge Hunter Biden for fraud or corruption for taking money from foreign governments. Another Republican DA will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad.
In fact, Donald Trump went to great lengths to do this very thing. William Barr, a Republican, did investigate allegations of foreign payoffs by Joe Biden. He never brought charges because he was unable to find any legitimate evidence whatsoever to support the claim.
And David Weiss, who was appointed by Donald Trump, investigated Hunter Biden, and charged him with tax fraud and lying about his drug use on a form he submitted to purchase a gun. Note that these are the kinds of criminal charges a regular person would almost certainly never face. Hunter Biden is being charged because he is the president’s son, and has engaged in sleazy-but-legal dealings that made him a prosecutorial target.
If Yoo was remotely capable of perceiving reality objectively, he would grasp that these examples refute his assumption that “the Democrats” control various prosecutorial arms and have abused them for political purposes. Joe Biden assuredly is not on board with the Justice Department throwing his son in prison. But Yoo seems to believe Hunter Biden has somehow escaped prosecution.
The deepest conceptual flaw in Yoo’s demands for legal revenge is his belief that Trump is an innocent victim. “Democrats have crossed a constitutional Rubicon,” he argues. Before now, he claims, opportunities to prosecute presidents abounded but were never taken, out of principle:
Gerald Ford, in a great act of statesmanship, pardoned Richard Nixon even though it doomed his chances in the close 1976 election. Bush did not prosecute Bill Clinton for lying to the Whitewater special counsel, even though Clinton’s Justice Department had conceded that he would become legally liable once he left office. Obama did not attempt to relitigate the difficult policy decisions made during the War on Terror by prosecuting Bush and his aides (of which I was one). Trump did not order the investigation of Hillary Clinton, even though her intentional, illegal diversion of thousands of classified emails to her home computer network was a central theme during his campaign. Nor had local or state prosecutors dared to interfere with the workings of the presidency before.
It is true that presidents have gotten into legal trouble areas before. But no previous president actually attempted to stay in office despite losing an election. Another thing those other presidents had in common is that they were politicians who sometimes operated in legal gray areas, but fundamentally respected the legal system.
Trump is a career criminal who went into politics. Treating laws as suggestions is one of his basic maxims. Once in office, he continued to act like a crook. He routinely berated his lawyers for taking notes in his presence and urged them to act more like Roy Cohn, the mob lawyer he once employed and idolized. He regularly ordered people to violate the law, and sometimes promised to pardon them if they were caught, and is currently promising pardons for the insurrectionists in prison who committed violence on his behalf.
Yoo argues that what broke the system was the decisions to charge Trump with crimes, and what can repair it will be charging Democrats. I would suggest the solution instead would be for Republicans to nominate as their next presidential candidate an experienced, vetted politician rather than a professional swindler.
And yes, Bragg’s case is weak, but it too could have been avoided if the GOP didn’t pick a presidential candidate who had a standing catch-and-kill arrangement with the National Enquirer.
Ted Cruz or Ron DeSantis may be right wing, but they are not mobbed-up crooks, and they wouldn’t be facing prison right now if they had beaten Trump in their respective nominating contests.
