CONLEY COMMENTARY (WSAU) – We know this about Donald Trump’s nature: He wants to get even. He is a score settler.
If you think what Democrats need is a taste of their own medicine, you’re wrong. If Republicans weaponize the criminal justice system, and perhaps get a few Democrat scalps, that won’t be the end of it. Lawfare will become a permanent feature of American politics. That’s not what’s best for the country.
The executive branch and the legislative branch are each too political to put a stop to this. It falls to the Supreme Court of the United State to bring this sorry state of American politics to an end.
The Court will have two chances to get this right. There is already a case pending where Donald Trump is asking the court for expansive executive immunity. I believe Trump will get a partial victory. This is probably good for all presidents. Recall that Barack Obama played judge and jury with drone strikes against terrorists. He bragged about keeping the terror watch list on his desk in the Oval Office. He acted as a Caesar; thumbs up or thumbs down if death would rain down from above. Some of those operations killed civilians. So, can Obama be charged with murder by some ambitious prosecutor?
I believe that someday Donald Trump’s business records case will find its way to the Supreme Court. There are obvious problems in the case with felonies versus misdemeanors, underlying crimes that were never tried or proven, and the instructions given to the jury. And usually the Supreme Court issues narrow rulings on just one part of the case before it. That would be the wrong path here. What’s needed is an expansive ruling, giving courts guidance on how to deal with lawfare cases. Perhaps Samuel Alito, or Clarence Thomas, or Brett Kavanaugh will have the courage to write it.
It should read something like this:
“The tradition of American politics is that our differences are settled through the ballot box, not through the courts. The courts, and specifically this court, will look with skepticism at cases where:
- The defendant is a candidate for or the holder of public office;
- Pursuing such a case disrupts the defendant’s ability to run for office or to carry out the duties of their office;
- The nature of the case is novel, using an unusual or unorthodox legal theory or argument.
Such a simple-three step test would be a godsend for our nation. And it need not be controversial. Our Justice Department already has internal policies against indicting a sitting president or against bringing charges too close to an election.
This would not be a get-out-of-jail-free card for politicians. They’re still accountable to the voters on election day. And charges can always be pursued once they’re out of office.
The nation’s urgent need right now is an end to lawfare. I hope our Supreme Court rises to the occasion.
Chris Conley
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