Comment: What’s purpose of GOP threats against Trump’s prosecutors
Published 1:30 am Monday, September 4, 2023
By Jonathan Bernstein / Bloomberg Opinion
In the latest plan by House Republicans to stop the various prosecutions of former president Donald Trump, U.S. Rep. Andrew Clyde, R-Ga., plans to offer amendments in the Appropriations Committee that would prevent prosecution of presidential candidates.
Clyde, a member of the extreme wing of the party, would do so by invoking a little-used congressional maneuver to eliminate federal funding — including salaries — to anyone involved in such actions. In this case, that would mean stopping the Department of Justice from spending money on prosecuting any presidential candidate. Clyde’s amendment would only prevent federal prosecutions, but other House Republicans are trying to cut federal funds to New York and Georgia to punish them for their state-level indictments of Trump. (The details of how prosecutions are funded are complex, and we don’t yet have the wording from Clyde’s amendment or from other similar efforts to know exactly how they would accomplish his goal. But he has told reporters that he would seek to cut off any prosecutions of presidential candidates, not just Trump.)
The problem is presidential candidates should’t be shielded from prosecution. They should be subject to the rule of law like every other U.S. citizen.
The argument for not prosecuting sitting presidents — which is a policy of the Justice Department, not a law passed by Congress or a judicial doctrine decided by the courts — is based on the potential damage to the nation from a president having to defend him or herself in court while also attempting to fulfill the responsibilities of the office. Presidents are subject to impeachment by the House followed by removal by the Senate, after which they may be charged with a crime and prosecuted like anyone else.
But using Clyde’s logic, presidential candidates would have a perpetual get-out-of-jail-free card, given that after losing once they could presumably file to run in the next election.
And why? Republicans have complained that industrialized nations, democracies, don’t indict or prosecute their top politicians. If that’s the case, France, Italy, Japan and Israel would like a word.
Yes, there is a danger in the possible reality, and the likely perception, that the incumbent party is targeting political opponents and so it’s healthy to have some institutional separation between politicians and the decision to prosecute. But that’s exactly what the United States has now, with a mostly independent Department of Justice — including career prosecutors — and in Trump’s case an independent counsel. These are, by the way, all devices that Trump attempted to destroy when he was president and which he has pledged to do should he be elected again. In the meantime, the extremist Republicans in the House are doing what they can to help him.
(On balance, it seems to me that the current setup has sufficient separation and the constitutionally unwieldy independent counsel law of the 1970s to 1990s would do nothing to prevent Trump-style accusations of bias. After all, Trump has repeatedly accused judges he nominated and officials he hired of being part of a conspiracy against him and we’ve seen that many Republican Party actors and voters are willing to follow his lead. There’s simply no institutional design to prevent that kind of perception of bias.)
The truth is that the rule of law requires everyone, including presidents and certainly presidential candidates, to be subject to prosecution by duly authorized officials. Members of the House trying to protect Trump from the consequences of his own actions are disgracing themselves and threatening constitutional government.
To be sure, Clyde’s effort and similar moves by Rep. Marjorie Taylor Greene, R-Ga., and others are creating internal divisions within the party and aren’t going to pass into law. Clyde’s amendment may well fail in committee and Greene’s effort would fail on the House floor if it came to a vote. Even if they somehow managed to get included in spending bills that pass the House, they won’t have any chance in the Senate, with its Democratic majority. The Senate thus far also has taken a bipartisan approach to the annual spending bills, which are supposed to approved by the end of September.
Instead, this is an excellent example of a key House Republican dynamic. Again and again, we see extremists try to find ways to differentiate themselves from mainstream conservatives so that they can claim to be the true conservatives and everyone else RINOs. But given how conservative the entire conference is on normal policy questions, the only ground available to them is procedural radicalism.
In other words, the goal here is less about protecting Trump than burnishing their conservative bona fides.
(Yes, the Democratic caucus is very liberal too. But few mainstream Democrats fear being called “moderate” the way that Republicans fear being called insufficiently conservative. In fact, most of them welcome it. And the most liberal Democrats have found no difficulty in finding policy, rather than procedural, ways of separating themselves from the rest of the caucus. They also don’t appear to find that separation very important.)
It’s also an example of how one faction of the party uses its slim majority to coerce colleagues to accede to its extremist ideas.
Whatever the motives, what these extremists are pushing is yet another idea that undermines republican principles and the rule of law. And that’s a very bad idea, whether it applies to sitting presidents, a former president, all presidential candidates, or any other group of would-be kings and queens.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.
