When former President Donald Trump indicated that he expected to be arrested by the Manhattan District Attorney’s Office, he didn’t pledge to fight the charges in court, or promise to abide by the legal system. Instead, the former president and his supporters, including those in Congress, hysterically attacked the prosecutor and threatened to interfere in the investigation. Before seeing the indictment and underlying evidence, they denounced the prosecution as political and unfounded. And in a foreboding echo of his actions in the lead-up to the Jan. 6 attack on the Capitol, Trump called for protests in a further attempt to undermine our democratic foundations.
As a former federal prosecutor and the lead counsel in the first impeachment of President Trump, I helped prove that he abused the power of the presidency by extorting Ukraine for his personal benefit. I then ran for Congress principally on a platform of preserving and protecting our democracy and the rule of law. As Trump faces the first of several possible indictments, we must affirm a core value that the former president rejects: No person is above the law.
If we are truly a government of laws, not men, then it follows that the law should bend for no person.
The rule of law that underlies our democratic values finds its roots in the Greek philosopher Aristotle, who stated: “Passion influences those who are in power … Law is reason without desire.” Our second president John Adams stressed the importance of this concept for our fledgling democracy, insisting that “it may be a government of laws and not of men.” In order to preserve fidelity to the rule of law, Adams and our other Founding Fathers enshrined the separation of powers in our Constitution. They ensured that a neutral judicial branch would interpret and enforce laws passed by the Legislature and implemented by the executive branch. And they delegated critical responsibilities to the states, including the prosecution of most crimes. Neither the target of this investigation nor his defenders in Congress has any right to intervene in this prosecution, as they are trying to do.
Our criminal justice system includes vital protections against the awesome power of the prosecutor. The first is the grand jury, which decides whether there is sufficient evidence to support an indictment proposed by the prosecutor.
The second, of course, is the fundamental right to a trial by jury -- 12 peers who must unanimously agree that the prosecutor has proven a crime beyond a reasonable doubt, the most stringent standard in our legal system.
If we are truly a government of laws, not men, then it follows that the law should bend for no person. Just like every other person, Trump has constitutional rights to a trial by jury, to confront his accusers and to legal counsel. If he believes that the legal basis for the charge is unfounded, he can make that argument to a judge, who decides the law.
Mr. Bragg’s critics can’t have it both ways.
But if there is evidence admitted at trial to convince 12 jurors that he committed a crime beyond a reasonable doubt, then a prosecutor must decide whether to bring such a charge without fear or favor. If Trump is not charged because of concerns about the response from his supporters or because he is a presidential candidate, then our government ceases to be one of laws not men, and our great experiment of constitutional democracy will crumble. If Trump is not guilty, or if the charge is legally deficient, then a courtroom is the proper venue for a judge and jury to make those determinations, not the halls of Congress or the public square.
I have no idea whether a judge will approve of the rumored legal basis for the charges against the former president or whether a trial jury will convict or acquit. But I do know that many of the same people who now accuse Mr. Bragg of making a political decision to charge Trump were extolling him as a man of principle when he rejected the recommendation of other prosecutors in his office to indict Trump on a different case a year ago. Mr. Bragg’s critics can’t have it both ways.
We know Donald Trump does not believe in the rule of law, as I helped to demonstrate four years ago. If we are to preserve our democracy, our justice system cannot allow itself to be intimidated when anyone, former president or otherwise, threatens mob violence to undermine the rule of law. We cannot let anyone get away with unduly attacking a prosecutor in an effort to interfere with or obstruct an ongoing criminal prosecution. And we can’t pretend that this case, or any other, can be settled in the political arena.
Our democratic system of government hinges on our fealty to the rule of law. Responsible elected officials should support that system rather than try to tear it down out of fealty to one man.