Progressives who can barely contain their glee at Donald Trump’s criminal indictment — For something! Finally! — are busily trying to camouflage this vindictiveness with gravitas by uttering a somber incantation: “No one is above the law.” Got that? No one. Those are just the rules.
The slogan could be used to justify any prosecution, no matter how poorly predicated, selective or malicious. Outside of making war, the ability to incarcerate citizens is the rawest expression of the state’s monopoly on violence. Do you have reservations about wielding that power in a particular case? You must think someone is above the law. The argument has no clear limits.
Abhorrence of prosecutorial abuse should reinforce the principle of legal equality. Now, political pressure could set those principles against one another, as Americans are commanded to show their commitment to equality by suspending reservations about the criminal-legal system’s excesses. Down that road lies the collapse of due process. It was a revealing slip when, in her compulsory no-one-is-above-the-law Twitter pronouncement, Rep. Nancy Pelosi (D-Calif.) allowed that, at trial, Trump has a chance to “prove innocence” — thereby presuming his guilt.
Progressives have alighted on a slogan that is supposed to acclimate Americans to a norm-breaking indictment of a former president, but which actually undermines the indictment’s legitimacy. Those alarmed by the grand jury’s action don’t need to be convinced that everyone is equal before the law. On the contrary: Conservatives (and some liberals) oppose the indictment precisely because of the equality principle. They fear, with good reason, that Trump is being treated differently — treated not as above the law but below it, or at least dangerously outside its constraining norms.
Consider a handful of the facts that make this indictment unusual. First, it’s based on old conduct involving payments to porn star Stormy Daniels in 2016 to stop her from revealing an alleged affair from the 2000s. If Trump had not left New York state in 2017 for the White House (which can “toll” the state’s statute of limitations), his indictment in 2023 would have been time-barred. And even when a case isn’t technically time-barred, prosecutors generally prefer fresh cases to avoid open-ended inquiries and because evidence and recollections erode over time.
Second, other prosecutors declined to pursue the case against Trump — not just the famously aggressive U.S. attorney for the Southern District of New York, but New York City’s previous district attorney, Cyrus R. Vance Jr., a Democrat. Prosecutors prefer cases that are backed by legal consensus.
Third, if reporting is accurate (the indictment itself is not yet public), the charges rest on the proposition that the payment to buy Daniels’s silence amounted to a Trump campaign expense. Perhaps, but nondisclosure agreements are frequently entered into by public figures who aren’t candidates for office. Prosecutors prefer criminal cases where a violation is clear, leaving others to civil enforcement.
Fourth, the indictment would seem to transform a hypothetical federal offense into a state crime under a New York business-records law. According to this procedural jujitsu, Trump committed a state felony by marking the payments as legal expenses to conceal a federal campaign expense. Prosecutors prefer not relying on such convoluted constructs, which are vulnerable on appeal.
Perhaps Trump will be convicted nonetheless — the justice system is not kind to unpopular criminal defendants, and Trump is not popular in Manhattan. But does this sound like the project of a good-faith prosecutor trying to make efficient use of resources, taking cases as they come, or a prosecutor looking for a way to prosecute a particular individual?
Consider a 1940 speech on the role of prosecutors by Robert H. Jackson, the 57th U.S. attorney general. (Later appointed to the Supreme Court by President Franklin D. Roosevelt in 1941, he became a towering liberal voice, dissenting in the Korematsu decision green-lighting the detention of Japanese Americans.) Jackson said:
“One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”
We know why Manhattan District Attorney Alvin Bragg is pouring resources into this case, and it is not because the offense is the most flagrantly destructive and transparently criminal of all the business accounting that takes place in his jurisdiction. Jackson warned in 1940 of where this abusive selectivity could lead: “In times of fear or hysteria, political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.”
The strongest argument for the former president’s indictment is Michael Cohen — Trump’s erstwhile lawyer, who pleaded guilty in federal court in 2018 to white-collar crimes including a campaign-finance offense for his role in paying off Daniels. “No one is above the law” as applied to Trump makes most sense relative to Cohen: Why should the servant be punished if not the principal?
In fact, Cohen might not have been guilty of the campaign-finance offenses he pleaded guilty to. He was also being charged with more-serious felonies and had by then turned on his former boss. The campaign-finance charges against Cohen could have implicated Trump, but they were never proved in court. The fact that one person involved with an act has an interest in a guilty plea doesn’t mean someone else is guilty of a different charge, brought by a different sovereign.
“No one is above the law” masquerades as a clean legal principle but in fact demonstrates how difficult it is to agree on such principles. Who? What law? And what constitutes being above or below it? These are all political questions.
Slogans are meant to conceal complexity. The rote repetition of this one helps its proponents ignore the subtleties of prosecution that Jackson explained. It suggests that if there is any conceivable crime, under any definition, committed by anyone anywhere at any time, then that person should be investigated and perhaps jailed. Such a mentality invites a police state — yet opposing it is being recast as an attack on equality, rather than common political sense. That, we will come to regret.