The legal imperative for prosecuting TrumpLaw professors untrained in political calculations
August 12, 2023 Letters to the Editor Bruce Fein's Pioneering Lyceum is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. The New York Times Re: “The Prosecution of Trump May Have Terrible Consequences,” (Jack Goldsmith Opinion, A18, August 10, 2023) To the Editor: Harvard Law Professor Jack Goldsmith errantly conflates law with political calculations in which he has no training. The Professor urges hesitation in prosecuting former President Donald Trump for serial crimes against the Constitution and laws which he was sworn to uphold and defend. The hesitancy is not because the prosecutions would be legally flawed, but because of a putative political need to appease Mr. Trump’s yahoos. But should the law bow to the mob? The smoking gun against Trump is his demand of Vice President Mike Pence on the morning of January 6, 2021, shortly before he exhorted armed violent supporters like Proud Boys and Oath Keepers, to attack the Capitol to prevent Mr. Pence from counting state-certified electoral votes as stipulated by the 12th Amendment: “[C]hoose between [me] or the Constitution,” Mr. Trump demanded of Mr. Pence. Professor Goldsmith frets about the appearance of uneven handed justice because of alleged leniency towards Hunter Biden. But what about the convictions and sentencing of more than 500 of Mr. Trump’s foot soldiers for marching to his exhortation to attack the Capitol? Several have been sentenced to more than 10 years’ imprisonment. Failing to prosecute Mr. Trump, who orchestrated their crimes would reflect uneven handed justice at its worst. Unlike his foot soldiers, President Trump was saddled with a constitutional duty to honor rather than scuttle the 12th Amendment. The American people opposed the dual system of justice suggested by Professor Goldsmith in punishing President Gerald R. Ford for pardoning former President Richard M. Nixon (while the latter’s underlings served prison terms). They elevated Democrat Jimmy Carter to the White House in 1976. The American Revolution celebrated the rule of law as king and deplored the king as law. To refrain from prosecuting Mr. Trump would mark a counterrevolution against the hallowed principle that no man is above the law. Finally, Professor Goldsmith’s tenure as Assistant Attorney General in the U.S. Justice Department’s Office of Legal Counsel (OLC) under President Geroge W. Bush should have been disclosed. OLC’s task is to invent legal theories to aggrandize executive power, for example, the idea that a sitting President is constitutionally immune from criminal prosecution. Sincerely, Bruce Fein, associate deputy attorney general under President Reagan, 1981-83, and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy 300 New Jersey Avenue, N.W., Suite 900 Washington, D.C. 20001 Phone: 202-465-8728; 703-963-4968 (M) Email: bruce@feinpoints.com Bruce Fein's Pioneering Lyceum is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. You're currently a free subscriber to Bruce Fein's Pioneering Lyceum. For the full experience, upgrade your subscription. © 2023 Bruce Fein |