If Trump did anything ‘illegal,’ so too did several of his predecessors

President Trump is understandably upset about three developments from last week. First, his former personal lawyer, quite unethically, accused him of having committed a criminal violation of the federal election laws by paying money to an extortionist, alleged ex-mistress. Such conduct is not a crime: Trump is allowed to spend as much of his own money on an election as he desires.

When former vice presidential nominee John Edwards was accused of doing exactly the same thing in 2011, the Justice Department ended up dropping all the charges against him after it could not get a jury to convict. The federal election laws have to be applied to Donald Trump in exactly the same way they were applied to John Edwards in 2011. President Trump should not be criminally prosecuted for doing what John Edwards did.

{mosads}Second, President Trump is upset that his former campaign manager, Paul Manafort, was tried and convicted of several felonies by Special Counsel Robert Mueller, who is trying to get to him “to flip” and testify against Trump as part of a “plea bargain.” Trump understands now that the American criminal justice system — which relies almost exclusively on plea bargains, and not on jury verdicts — is utterly unfair to criminal defendants. Law professors such as John Langbein at Yale Law School, Alan Dershowitz at Harvard Law School, and me at Northwestern Law School — along with many others — have been saying exactly the same thing for 40 years!

We desperately need a new way of handling criminal justice in our country. The old jury, composed of 12 of your peers, is no longer the decision-maker 95 percent of the time. I urge President Trump to appoint a presidential commission to examine ways of reforming our criminal justice system so that it would not resolve 95 percent of all criminal cases without some kind of a public trial with cross-examination in which lay people play a role. Germany and France do this, and we could too.

Finally, President Trump is mad that he, his son and his son-in-law are being made the targets of a criminal investigation when former Secretary of State Hillary Clinton was given a pass on very serious charges of mishandling of classified information and on various other matters as well. Trump is right that the Mueller investigation is very unfair, and it is also unconstitutional. So, I understand why the president is mad.

But, unfortunately, President Trump went well beyond merely complaining about Special Counsel Mueller this weekend, and he launched a full scale attack on Attorney General Jeff Sessions for not investigating Hillary’s email server behavior, which President Obama had said was no big deal. This is a mistake because I believe that there has long been an unwritten norm in this country that no one should be prosecuted for partisan or political reasons.

This norm was violated during the George W. Bush administration by Karl Rove and Alberto Gonzales when they fired seven U.S. attorneys on Dec. 7, 2006, allegedly for partisan and political reasons. As a result, Alberto Gonzales was forced to resign as attorney general in disgrace.

We now hear very intelligent, very well-educated Democrats in New York state calling for the state attorney general to prosecute Trump for political reasons, since he cannot pardon himself for a New York state crime.

It is a very bad idea to mix criminal law and politics, because I can prove to you that all three presidents prior to Trump and Obama did things for which they could theoretically have been prosecuted. For example, a creative prosecutor could have easily prosecuted President George H.W. Bush for obstructing justice with his Dec. 24, 1992 pardons of six close friends of his who had been indicted by the Iran-Contra special prosecutor “to flip them” against Bush as a target. Those pardons were arguably a crime, but Bill Clinton’s administration wisely chose not to prosecute.

Bill Clinton, in turn, pardoned Marc Rich for committing 65 crimes on Jan. 20, 2000. It turned out that Marc Rich’s ex-wife had donated well over a million dollars to a combination of the Democratic Party; Hillary Clinton’s 2000 Senate campaign; and the Clinton library. There was a brief criminal investigation over allegations of bribery, but the George W. Bush Administration wisely dropped the matter.

George W. Bush’s administration, in turn, could quite plausibly have been prosecuted by President Obama for water-boarding alleged terrorists, which is arguably a form of torture in violation of federal law. President Obama wisely chose not to prosecute George W. Bush, and he turned his gaze toward the future.

Now, it is President Trump’s turn to decide whether or not to prosecute his 2016 electoral opponent, and conceivably President Obama as a co-conspirator, for overlooking Hillary Clinton’s clearly improper handling of classified information. President Trump, and the Republican Party in the House of Representatives, should follow precedent. They should not prosecute these matters. They should turn their eyes toward the future. And President Trump should hope every day for the rest of his term that one of his successors does not choose to prosecute him for pardoning Paul Manafort or for anything else that he does.

Two hundred and twenty-five years ago, French revolutionaries sent all their political opponents to the guillotine. Fifty-thousand people died as a result. Democracy cannot exist if we criminalize politics.

We need a federal statute formally making it a crime punishable by five years in prison for any federal, state or local government attorney to initiate any criminal or civil case — or investigation — for partisan or political reasons.

Steven G. Calabresi is a co-author of “The Unitary Executive: Presidential Power from Washington to Bush” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.