Many Republicans who have never been Trump supporters, who are disgusted by his personal immorality, dismayed by his inflammatory and often ill-informed rhetoric, and unconvinced by his claims that the 2020 election was stolen, believe that the Democratic prosecutors are fighting Mr. Trump. Many Republicans who condemned his part in the January 6, 2021 attack on the Capitol and thought he should have been impeached and convicted for it now see the legal crusade against Mr. Trump as threatening to the democracy like what happened that day. Democrats need to understand why.
The charges against Mr. Trump in New York were fake. The hush money payments to Stormy Daniels were not illegal. It was the labeling of these payments as legal fees that constituted the crime, but that is a misdemeanor in New York, for which the statute of limitations ran out in 2019. Falsifying business records becomes in a felony, with a statute of five years. of limitations, only when it is done with the intention of concealing the commission of another crime.
What was that other crime? The indictment did not say so, and each juror was allowed to choose between any of the three theories, meaning that Mr. Trump could have been convicted by a jury that put together three different legal theories, even if a majority of jurors rejected each one. one
Towards the end of the trial, prosecutors focused on a New York statute that prohibits attempts to “influence” an election by “unlawful means.” His theory — that all these tricks were designed to hide Mr. Trump's immorality from voters before the 2016 election — could be true. There is, however, an insurmountable problem with this theory. Payments to Trump lawyer Michael Cohen that were illegally classified as legal fees were made after the 2016 election. Business records crimes could not have been committed with intent to influence the outcome of a contest that had already ended. It follows that Mr. Trump was wrongly convicted.
So fair-minded Republicans, independents, and Democrats alike are justified in viewing the New York case as an abuse of the system, brought with the intention of swaying the 2024 election. The prosecution of District Attorney Alvin Bragg was a much clearer and more dangerous attempt to influence voters than the mislabeled payments to Mr. Cohen. No wonder so many people told pollsters they were unmoved by the verdict or would vote for Mr. Trump because of it.
The larger context makes it worse. Mr. Bragg openly campaigned on a vow to hold Mr. Trump and his family. It is one thing for a prosecutor to commit to prosecuting crimes in the public interest. But Mr. Bragg did not pursue specific crimes; he went after a particular defendant, who happened to be the other party's candidate for president.
Hillary Clinton did the same as Mr. trump His campaign reimbursed a Democratic law firm more than $1 million for payments to a third party to produce an opposition investigation (the Steele dossier) and falsely described those payments as “legal services” and “legal and compliance advice.” The Federal Election Commission fined the Clinton campaign $8,000 for the violation, while Mrs. Clinton herself skated. Republicans wonder why a similar penalty for Mr. Trump would not have been sufficient for the much smaller payments to Mr. Cohen.
North Carolina Senator John Edwards, the 2004 Democratic vice presidential nominee, also did what Mr. trump During his 2008 presidential run, he used campaign contributions to pay nearly $1 million in hush money to a former lover, falsely claiming the payments were personal gifts from donors to the woman. He was indicted on six campaign finance charges, and a federal jury in North Carolina acquitted him of one and failed to reach a settlement on the others. The Justice Department did not seek a new trial.
These facts are rarely mentioned in news articles about the verdict against Mr. trump Republicans suspect that if the shoe were on the other foot, reporters would be shouting from the rooftops about the double standard.
Mr. Trump faces three other criminal cases. With one exception, each of these cases is based on vague and unproven legal theories. The exception is prosecution for unauthorized retention of classified documents after leaving office. These charges appear to have a solid factual basis. But here, too, the smell of selective processing is hard to escape. Not only did Mrs. Clinton mishandle classified documents, so did Mr. Biden. In fact, he shared them with a ghostwriter after he left the vice presidency. Special counsel Robert Hur determined that Mr. Biden's actions were “voluntary” but declined to prosecute, largely because of doubts about how a jury would perceive the president's memory and mental capacity. Apparently, Mr. Biden is sharp enough to lead the country for the next 4 1/2 years, but not sharp enough to stand trial.
Conclusion: Both presidential candidates appear to have broken the same law; the one in power is excused and his opponent faces trial.
Using the criminal justice system to stop the opposing political party is a profound violation of democratic norms, something we expect from authoritarian regimes, not a mature and well-functioning democracy. This does not mean that members of the opposing party should be immune from prosecution, but any such prosecution should be for actual crimes that would be brought against defendants on either side. If Democrats want to be taken seriously when they say they stand up for democracy, they should take a long hard look in the mirror and see how bad they are doing.
Mr. McConnell is a professor at Stanford Law School and a senior fellow at the Hoover Institution. He served as a judge on the 10th United States Circuit Court of Appeals, 2002-09.
WSJ Opinion: Hollywood Joe Biden's Celebrity Party
WSJ Opinion: Hollywood Joe Biden's Celebrity Party
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