Even before former President Donald Trump was indicted last week, Republicans and pundits were busy predicting that Democrats wouldn’t like what comes next. Those warnings grew even grimmer after Trump’s arraignment in New York on Tuesday.
Appearing Wednesday morning on “Fox & Friends,” House Oversight Committee Chair James Comer, R-Ky., told the hosts that he’d fielded calls from two county attorneys, one from Kentucky and one from Tennessee. “They want to know if there are ways they can go after the Bidens,” he said. Democrats like Manhattan District Attorney Alvin Bragg have “opened up a can of worms; they’ve set precedents now we can’t go back on,” Comer moaned.
It is at best an extremely unserious theory that ignores the foundations of our justice system.
Call it the “Pandora’s Box” theory of Trump’s indictment. Under this theory, as Comer laid out, now that Trump has been charged with 34 felony counts in New York City, it’s going to be open season on future presidents. Often this has been posited as a threat against Democrats in general and President Joe Biden in particular. It is at best an extremely unserious theory that ignores the foundations of our justice system. At worst, it is a sign that Republicans will be more than happy to dish out retribution to avenge Trump’s finally being held accountable.
Let’s stick with Comer’s specific claim for a second. Suppose these two county attorneys do decide to launch investigations into the Bidens. They will find their probes lack some of the advantages of Bragg’s case. Most obviously, the charges against Trump stem from the fact that his business is in Bragg’s jurisdiction. There is no analogous reason for the county attorneys who allegedly gave Comer a ring to look into Biden or his son Hunter.
The claim that we may see a rash of future criminal investigations all over the country also doesn’t consider the actual cost, which I’m guessing most Republican district attorneys would struggle to fund. State attorneys general may have an easier time there, but the targets of these theoretical investigations wouldn’t be lacking in resources to defend themselves given the average former president’s net worth.
Comer and other House Republicans have even claimed, as part of their demand that Bragg turn over documents and testimony about the investigation into Trump, that new laws might be required to nullify such supposed freelancing in the future. The Judiciary Committee in particular “must now consider whether to draft legislation that would, if enacted, insulate current and former presidents from such improper state and local prosecutions,” they wrote in a letter to Bragg last month.
It’s cute that House Republicans are pretending that their probe is about anything other than discrediting Bragg’s investigation. It’s not like Republicans would view a local district attorney prosecuting Biden after he leaves office as a tragedy. But like the other “Pandora’s Box” arguments, the hypotheticals they offer in no way supersede the actual evidence against Trump. It’s the sort of slippery slope false argument that should be clear to anyone, let alone the actual lawyers who are making it.
That includes former federal prosecutor Ankush Khardori, who argued in The New York Times that the wide variety of travels and activities presidential candidates undertake would make them particularly vulnerable under the supposed precedent Bragg has set:
Say a candidate instructs the motorcade to speed to an event and it results in a deadly car accident or he directs organizers to let people into a venue that is over capacity and someone loses his or her life, crushed in the crowd. Are we later going to see an investigation and prosecution for involuntary manslaughter?
— AnKush Khardori
Well, ideally, yes. We should see that investigation and, if the local district attorney finds it worth it to pursue charges, a prosecution. The same goes if you swap out “candidate” for “movie star” or “tech mogul” or any other rich or famous person. For example, as of November, there was still an ongoing criminal investigation into the deaths of 10 attendees at Travis Scott’s Astroworld festival in 2021. That’s part of what it means to be subject to the rule of law.
If any officeholder, Democrat or Republican, is suspected of a crime, then the criminal justice system should still apply to their actions.
Furthermore, the idea that future presidents will bear the cost of Trump’s prosecution assumes that future prosecutions would inevitably gather enough evidence to get grand juries to indict in the first place. That wasn’t even a guarantee in Bragg’s investigation in the Democratic stronghold of Manhattan. Nor is it guaranteed that a judge wouldn’t toss out any case that’s seen as lacking in merit. Nor is it guaranteed that a jury would vote to convict. The fact that this is the case in Trump’s trial and in any other case that may or may not be brought against Biden or any future president, Republican or Democrat, shows there’s no particular danger in putting a former president on trial compared to any other defendant.
Also, this “precedent” seems predicated on two conflicting ideas: that all similar prosecutions will end in convictions, threatening the freedom of former presidents, and yet all similar prosecutions are also politically motivated nuisances, with no threat of jail time but wasting massive amounts of time. It’s unclear to me that either is necessarily true, but neither seems like a valid reason to forgo prosecuting Trump.
The truth is that we don’t even know whether Bragg’s case will end in a conviction. But if any officeholder, Democrat or Republican, is suspected of a crime, then the criminal justice system should still apply to their actions. And if Republicans decide to dig for a contrived reason to prosecute Biden, it feels safe to say that would have happened whether Trump was put on trial or not. And if they do, they’re going to be digging for a while — there’s not the wealth of criminality we’ve seen from Trump available for them to draw on.
