Issacharoff: “Prosecuting a President – Under What Conditions Is It Warranted?”

Sam Issacharoff has this post on Just Security, identifying four factors that should be considered in making this momentous decision. Here’s the conclusion:

Ultimately, for democracy’s sake, the prosecution of a former president relies on prevailing in the court of public opinion. That is by far the biggest gamble with the charges against Trump, since if he is renominated, the election narrative will not be about COVID or the economy or the invasion of Ukraine, but once again about the person of Donald Trump.  Unfortunately, we live in a time of grave skepticism about the independence and capability of  public institutions, prosecutors and courts included.  In the crucible of a presidential election, the prosecution of a former president and leading candidate unfortunately risks drawing a partisan veil over even proper legal enforcement.  Claims of partisanship will invariably attend the prosecution of a head of state.  Institutional safeguards can minimize the risk that the charges of political retaliation will dominate the public discourse.  Prosecutors and courts need to be attentive to the realities of the broader political environment.

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