The American political party of law and order is on the verge of suicide.
Much of the Republican Party struggles to decide which principles define it — other than an unapologetic fealty to Donald Trump. The party of free market economics erupts into applause when Trump proposes a 10% tariff on foreign imports. The party of Reagan — who hastened the demise of a Soviet Union and freed Ukraine from communist control — now demands a brokered peace with Russian aggressors that would undeniably result in parts of Ukraine falling back under control of Vlad the Invader, formerly of the KGB. A GOP that once proudly touted their commitment to “law and order,” now seeks to impeach, derail, and defund any prosecution it deems politically unworthy.
The methods employed are — predictably — Machiavellian. As with so much of politics these days, the process is an irrelevant hindrance on the way to the proper ends. Who and how a prosecutor is removed is less important than the fact that a prosecution is ended, namely the prosecution of Donald Trump. I am no fan of the cases being prosecuted against Trump.
From my perspective based on my limited exposure to criminal law over the past 28 years, the strongest of the four prosecutions against the once (and future?) POTUS is the Jack Smith/DOJ effort in Florida. It is targeted, restrained and consistent with past applications of an established law. Alvin Bragg’s indictment could only happen through the tortured application of a felony statute only to extend the statute of limitations to prosecute misdemeanor behavior (at best).
Jack Smith’s Jan. 6 DC case, as well as Fani Willis’ in Fulton County, appear to be ambitious, aggressive prosecutions based upon novel, untested, expansive applications of the law. And that makes them feel like they are motivated by something other than justice. It makes them seem political.
However, I am a fan of our criminal justice system and the checks against an overly zealous prosecutor who brings weak cases to court.
In America, our trust in the outcome of the system — conviction, acquittal or otherwise — is based on a system that demands more from prosecutors than anyone else and is designed to make convictions difficult to achieve and maintain. Trump’s cases must be permitted to go through that process.
Elected prosecutors seek indictments from grand juries comprised of members of the community. Those indictments are reviewed by judges accountable to voters (in the state system). Judges’ rulings on evidence and other matters are appealable to other unrelated judges, whose decisions are also appealable. Juries picked in part by the defendant are told that a finding of guilt only can occur if it is beyond a reasonable doubt — and unanimous. And those verdicts can be appealed and overturned. They could be appealed all the way to a Supreme Court dominated by conservative justices. And prosecutors can be recalled or denied reelection by a vote of those they represent.
For some Republicans, that process cannot be trusted. It must be circumvented in exchange for an expedient end they think best.
In Georgia, some Republican state legislators began urging the removal of elected District Attorney Fani Willis through a newly signed law (S.B. 92) that created a brand-new Prosecuting Attorneys Qualifications Commission. Each member of the commission is appointed by Republican politicians and is empowered by the law to discipline and remove elected prosecutors for — among other things — the incredibly subjective and vague “conduct prejudicial to the administration of justice which brings the office into disrepute….” All that is required for a complaint made by any person to be entertained is that it is “plausible” that the prosecutor made the decision to prosecute based on the undefined term “undue bias or prejudice against the accused ….” This law, which goes live Oct. 1, is not altogether unusual, but the GOP-advocated use of it to hijack a Trump prosecution is unprecedented and unwise.
Remember that rules exist across the U.S. that require prosecutors to recuse themselves when there is a conflict of interest in any case they handle, as well as providing for review of the failure to recuse. In Colorado, a statute permits a judge subject to a regular vote of the public to disqualify a DA on a particular case only upon a showing that “the district attorney has a personal or financial interest or finds special circumstances that would render it unlikely that the defendant would receive a fair trial.”
That is insufficient for those who know the right outcome.
Georgia’s Marjorie Taylor Greene has bootstrapped any vote to fund the government to the defunding of Special Counsel Jack Smith’s prosecution efforts. She is not alone in that proposal. Again, a system centuries in the making is on the verge of becoming overwhelmed by the siren song of political expediency. That it is the Republican Party on law and order and the rule of law leading that charge only makes that effort more perverse and sad.
So, here we are, at a place America has never been — testing the institutions that have defined and sustained our experiment in self-governance. And they — and we — are at risk of being burned to the ground for, well, you know who.
No politician is worth that. Let the process proceed.
— George Brauchler is the former district attorney for the 18th Judicial District. He also is an Owens Early Criminal Justice Fellow at the Common Sense Institute and president of the Advance Colorado Academy.
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