We are in a unique moment in American history.
There are currently four criminal investigations into the former president of the United States: two federal, one in Georgia, and one in New York. This novel situation has led to a debate not just in the walls of academe but amongst the citizenry as to whether prosecuting a former president will reduce our country to a so-called banana republic, or whether the very act of not prosecuting the former president would lead to that result. And just as important, how will Jack Smith, the designated Special Counsel in charge of the federal Trump investigations, weigh this issue in deciding whether or not to bring charges? Will the collateral consequences to the country be considered at all, and if so, which way will they cut, for or against prosecution?
In answering this question, it is useful to do something we are unaccustomed to as Americans: look to international examples. For what appears novel to us is something that many countries have faced — Argentina and Germany, to name but two — and are currently facing — France and Israel. The exercise of looking abroad for models is all the more relevant given Jack Smith’s background serving as a prosecutor on the International Criminal Court in the Hague, where he implemented the rule of law to prosecute political leaders. He followed in the footsteps of many others in that court, most notably Luis Moreno Ocampo, the very first Chief Prosecutor of the ICC who was fresh off the historic criminal prosecution of the bloody and sadistic leaders of a military junta in his native Argentina. It is worth remembering that Smith is a descendant of Ocampo and the example he set in Argentina, and then across the globe, from his perch in the Hague.
The example of the prosecutions brought by the ICC, and the domestic cases against leaders in countries like France and Israel, are important because they help us understand that our current situation is not unique, that political leaders can be prosecuted for crimes — and without dire Chicken Little predictions coming to pass — and indeed should be prosecuted if a country is going to be a nation of laws, applicable to all, both the powerful and the powerless.
These international examples are also useful in understanding the consequences of withholding prosecution of such political leaders. Would the world have been better off if Ocampo did not prosecute the military leaders who tortured and “disappeared” innumerable Argentinians? Would the lack of such a deterrent have been wise? Would it have provided a modicum of justice to the victims of their crimes, the desaparecidos, their families, and the Madres de Plaza de Mayo? That Argentinian example was said to be the most important trial against crimes against humanity since Nuremburg, and for good reason.
Argentina, like so many other countries, survived those trials. The dire predictions of the adverse consequences that would follow a criminal case against political leaders were overblown, and contrary to such fearmongering, democracy did prevail. Yet, even if the rule of law had faltered, if the trial failed and democracy slipped back into dictatorship, can any true system of justice grant a heckler’s veto to those who threaten violence as a strategy to shut down a criminal case against a popular or feared defendant?
No doubt, those in the camp that contend a prosecution of Trump would render us a banana republic have many examples of foreign “show trials” to point to. The former Ukrainian President Yanukovych’s prosecution of rival Yulia Tymoshenko, for instance, is a recent example. She likely committed the crime alleged, but it was one that numerous Ukrainian politicians committed with impunity and she was clearly charged solely as a means to rid Yanukovych of this meddlesome adversary.
The answer to those folks who say a criminal prosecution would lead to a spiraling of our justice system into a game of political payback is to challenge the proposed remedy they propose: to do nothing in the face of such criminality. Failure to prosecute leaders because of the conjectural risk to the system would create two systems of justice, with those in power never being held to the same standard as other wrongdoers. It would promote criminal behavior by our leaders, as it would establish our elected representatives to be beyond the reach of the law.
A better path to justice is to make sure that the crimes charged against a political leader are ones that are regularly brought in situations of equal or lesser culpability. Applying that standard to Trump is, frankly, an easy call. With respect to his actions seeking to overturn the will of the people, numerous foot soldiers (to use Representative Raskin’s term), have already been charged and convicted. To prosecute the leader of that plot, who engaged in a far more prolonged effort than what occurred on the day of January 6 alone, would not remotely raise a concern of selective prosecution. Similarly, Trump’s mishandling of government documents, including sensitive classified material, has been routinely criminally charged by DOJ against low-level government employees and contractors.
The rule of law, as effectuated here and abroad, compels a prosecution against those who conspired to overthrow democracy in the United States. The final piece that is necessary to implement this goal are women and men who meet the moment. The actor who plays Ocampo in the recent Oscar-nominated film “Argentina, 1985” says when he learns he will be assigned the junta case, “history is not made by people like me.”
But as that film, and as history shows, it very much is ordinary people devoted to the rule of law and willing to bet on it, regardless of personal consequences, who are the true and necessary champions of democracy. Jack Smith may be just that person.
Andrew Weissmann is a professor at NYU School of Law where he teaches criminal procedure and national security. He was a lead prosecutor for Special Counsel Robert Mueller, the former General Counsel of the FBI, and the author of “Where Law Ends, Inside the Mueller Investigation.” He is a legal analyst for NBC and MSNBC.