With Trump, Prosecutors Must Operate Outside of Political Sphere

When weighing potential criminal charges against Donald Trump, the prosecutors closest to the facts had to make good-faith judgments and hard decisions without knowing the future. Once President-elect Trump takes office on Jan. 20, the federal criminal cases against him won’t proceed.

But when prosecutors started their investigations, Trump hadn’t yet declared he would run again for president. And when prosecutors filed the charges against Trump in 2023, he hadn’t yet won the Republican nomination or been re-elected president.

From the perspective of the prosecutors then, Trump was a former president and private citizen, and it wasn’t necessarily foreseeable that political events would unfold as they did. Nor was it foreseeable that the US Supreme Court would upend decades of settled understandings by deciding that former presidents are immune from criminal prosecution for most official acts.

Some of today’s prosecution skeptics ruefully point to this decision as the net result of the Trump indictments: Not only has Trump escaped criminal prosecution for his past acts, but he is even less accountable for future crimes as he assumes the presidency again. The country is worse off for the Trump prosecutions, according to this framing, because they have emboldened Trump in his second term, created bad precedent, and perhaps even contributed to his re-election.

The empirical question of whether the Trump prosecutions helped him win re-election seems impossible to answer—so too does the question of how the Supreme Court’s immunity ruling will affect Trump’s behavior in his second term. After all, during Trump’s first term, the common understanding was that presidents weren’t entitled to immunity from criminal prosecution for official acts, and it’s not clear that fear of potential future prosecution constrained Trump.

But regardless of their answers, I am troubled by the premise that we should evaluate criminal prosecutions solely or even primarily in consequentialist terms, especially when the consequences of concern are political outcomes.

That seems the opposite of how federal prosecutors traditionally have, and should, decide whether to proceed with a case that’s otherwise supported by the facts and the law. The merits of the charges, on the law and the facts, is a different question. The long-standing Department of Justice policy against prosecutors taking overt investigative steps or filing charges against a political candidate within the few months immediately before an election aims to reduce the effect of prosecutions on elections and even the appearance of prosecutorial interference or favoritism.

This policy received considerable attention during the past year when Trump and his associates incorrectly characterized it as precluding the continuation of a case already charged well before that window. That same policy instructs prosecutors that charging decisions should never be influenced by partisan considerations. The idea that a prosecutor should withhold a meritorious charge because of its possible impact on a remote or theoretical election seems as contrary to prosecutorial independence as the idea that a prosecutor should bring a charge to secure a favored election result.

To be sure, prosecutors don’t operate in a vacuum, ignorant of the practical consequences of their charging decisions. For example, when federal prosecutors decide whether to pursue a case, they consider not only the facts and the law, but also whether prosecution is in the federal interest—an amorphous concept that encompasses a variety of concerns, including whether dedicating the resources required is worthwhile. Prosecutors can’t pursue all possible cases, so they must exercise a great deal of discretion in determining which ones should be brought.

Part of that calculus is necessarily consequentialist: Which case would do the most societal good by incapacitating the most dangerous offenders? Which case would accomplish the greatest general deterrence? Rather than pursue charges, prosecutors may pursue alternatives to traditional criminal prosecution—for example, for first-time offenders, when they determine that justice is best served by that resolution. Thus, prosecutors do consider context and effects in choosing whether and how to proceed, using their best judgment in matters about which they have expertise.

But the idea that political effects should influence prosecutorial charging decisions is wrong, in practice and in principle. Political events and consequences are unpredictable, and to the extent they can be measured and anticipated, prosecutors lack the expertise to do so. It’s also not part of prosecutors’ remit to choose a preferred or disfavored candidate and act accordingly.

Just as it would have been wrong to prosecute Trump to undermine his viability as a candidate for future office, so too would it have been wrong not to charge him on the basis that prosecutions might help him win re-election.

Many observers are understandably disappointed by the seeming end point of Trump’s criminal prosecutions, but that end point wasn’t knowable to prosecutors at the outset, and it shouldn’t have influenced their decisions. Political considerations are for other actors in our democracy, not prosecutors. Let’s hope that remains so.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jessica Roth is professor of law at Cardozo School of Law, Yeshiva University, co-director of the Jacob Burns Center for Ethics in the Practice of Law, and a former federal prosecutor in the US Attorney’s Office for the Southern District of New York.

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