What prosecutors should learn from the Trump election

Donald Trump was re-elected president despite being labeled, among other things, a racist, a rapist, a misogynist, an antisemite, an Islamophobe, a xenophobe, a narcissist, a fascist, a protectionist, a moron and an overall bad guy.

His tens of millions of supporters rejected all or most of those labels, which are, at the end of the day, mostly matters of opinion. But they also dismissed a label that is a matter of undeniable fact: he is a convicted felon.

Trump is the first person in the 248 years of the republic to be elected president after being a felony conviction. Yet he not only won well more than the 270 electoral votes needed to take his place as the 47th president, but he also won the national popular vote.

The prosecuting authority, the Manhattan District Attorney’s office, trying to preserve the conviction in the face of the election results, has asked for sentencing to be delayed until Trump completes his term. Trump’s lawyers, meanwhile, demand that the election should cause the case to be dismissed altogether.

Whatever the result, a lot of people are now left to reflect on what they could have done differently or better. Close to the top of that list should be prosecutors, who need to sit up, take notice, and ponder what the election results mean about what they do, how they do it, and how the public perceives it.

As then-Attorney General and later Supreme Court Justice Robert Jackson described it 80 years ago, the prosecutor “has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

For that reason, Jackson concluded, prosecutors must avoid the greatest potential abuse of their power: “that he will pick people that he thinks he should, rather than pick cases that need to be prosecuted.”

Prosecutors, in other words, are supposed to target conduct, not people.

The reason, as Jackson noted, is simple. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

This style of prosecuting, in Jackson’s view, poses “the greatest danger of abuse of prosecuting power. … It is here that law enforcement becomes personal.”

Not long ago, a felony conviction would have been a non-starter for anyone running for elected office, let alone for president. We now know that is not true today. Why? Quite simply, people have lost faith that prosecutors are exercising their vast discretion impartially based on conduct rather than in a partisan manner based on personal targets.

In a 2022 Gallup poll, only 14 percent of those surveyed claimed to have a great deal of confidence in the criminal justice system, down 6 percentage points from the prior year. Confidence in the criminal justice system ran behind people’s confidence in banks, the medical system and even the news media.

It is impossible to escape the conclusion that this erosion of confidence has been driven by the perception that prosecutorial decision-making has been politically motivated. And let’s be real: there is support on both sides for that conclusion.

During the 2016 campaign, for instance, the actions of the FBI in launching an investigation of the Trump campaign’s ties to Russia without disclosing to the court that their ultimate source was a report commissioned by the Clinton campaign undermined the credibility of that investigation. On the other side, the actions of Attorney General Bill Barr during Trump’s first term in "managing" and misstating the results of the Mueller investigation, and later in intervening in the prosecution of Roger Stone, were nakedly partisan in nature.

Lawsuits, investigations, indictments and convictions engulfed former President Trump from 2021 until 2024, but in 2024, President-elect Trump’s tens of millions of supporters disregarded all of this — his felony conviction, his indictments based on January 6 and his attempts to withhold classified documents, and the civil judgments against him for sexual assault and defamation.

Both sides have a point. Barr was justly criticized for his actions. But on the other side, was it a coincidence that it was New York Attorney General Letitia James (D) who brought civil charges against Trump in a bank fraud prosecution where the bank’s representatives testified they suffered no loss and believed Trump’s statements about his worth to be subjective? Or that another Democratic New York prosecutor, Alvin Bragg, brought felony charges against Trump that would normally be charged as misdemeanors, and for which jail time is imposed only rarely?

What was the public to make of Donald Trump’s felony indictment for his cavalier handling of classified government documents while former Clinton administration national security adviser Sandy Berger — who, unlike Trump, actually removed classified documents from the National Archives, secreted them in his socks and underwear, and destroyed them — was allowed to plead to a misdemeanor?

The ultimate irony, from our perspective, is it that the most reprehensible conduct in which Trump engaged — his incitement of a violent attempt to overturn the results of the 2020 election — will now go completely unexamined by the courts because Attorney General Merrick Garland delayed and prevaricated, hoping, perhaps, that Trump would not be renominated. Justice delayed in this case is truly justice — and more importantly, history — denied.

With the outrage of January 6 now to be unexamined and dismissed, and President-elect Trump’s stated determination to prosecute his political adversaries reinforced by his naming of a hard partisan as attorney general in former Florida Attorney General Pam Bondi , we have reached a day of reckoning for prosecutors. Are they there to seek justice, or retribution?

Will they be impartial officers of the court, or partisans seeking revenge? Are they part of an unending cycle of political payback, or guardians of the tradition set forth so long ago by Justice Jackson?

Prosecutors control the criminal justice system. They don’t determine the outcomes — juries do that — but they decide within budgetary constraints which crimes should be prosecuted in the interest of public safety, and which are less important. To rebuild public confidence in our criminal justice system, prosecutors in the next few years, starting with Bondi, must do their jobs mindful of Jackson’s wisdom, that “the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

They must understand that every prosecution of a duly elected or appointed official is a frustration of the voters’ will, and should be undertaken only in the most extreme cases. They must be willing to stand up to power and to leave where the demands of their jobs fall short of their oath to seek impartial justice.

That commitment would be a welcome return, in our view, to the ethics that guided us, and generations before and after us, in our service as prosecutors.

John J. Farmer Jr. has served as an assistant U.S. attorney, New Jersey attorney general, senior counsel to the 9/11 Commission, and director of the Eagleton Institute of Politics. Charles B. McKenna served as an assistant U.S. attorney, executive U.S. attorney for the District of New Jersey, and director of the New Jersey Office of Homeland Security and Preparedness.

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