Prosecuting Public Officials in a Republic

Nixon should not have been pardoned and what Trump v. US got wrong

For several weeks—prior to yesterday’s decision in Trump vs. United States­—I’d been thinking about the criminal prosecution of public officials. Obviously, the many Trump cases were on my mind. But so were the possible crimes by President Biden in the documents case and the countless examples of legislators, judges, governors, and other officials going to jail for breaking laws.

Lots of people had been writing about such things, but none of those articles or essays scratched my particular itch. Yes, they discussed prosecutorial discretion, standards of evidence, and the politicization of law enforcement. And, yes, those are important issues. But something else also mattered to me: the importance of America’s republican form of government.

That is, in most places and for most of recorded history, public officials were largely above the law and those opposed to the current regime could face prosecution for just about anything. It seemed to me that America was different in a fundamental way—in a way that isn’t fully captured by the phrase “rule of law.”

So I wrote an essay applying the principles of American republicanism to this issue. It is now live on FUSION. I hope you give it a read.

By way of explanation: I had spent more than a year thinking about republicanism thanks to the Covid-era intra-conservative wars about liberalism. I ended up writing a long essay for National Affairs explaining, among other things, how modern republicanism is defined by five principles. (Thanks to the framers’ records, the Federalist Papers, and the Constitution itself, we know America was designed with republicanism in mind.)

What, I wondered, would we learn if my saw criminal charges against public officials through the lens of these five principles?

I concluded that republicanism limits such prosecutions in several ways.

But I also concluded that republicanism sometimes encourages—and in some instances demands—prosecution.

After I finished writing the essay about a week ago, I thought my most notable new insight was that Richard Nixon should not have been pardoned for his Watergate-related crimes.

But after the decision in Trump v. US yesterday, I see that my major takeaway is that the majority got the limits on some prosecutions exactly right but the demand for some prosecutions very wrong. But more on that in a future installment,

Before all that, I hope you give my FUSION essay a look. In a republic like ours, it’s essential to understand the proper role for prosecutions of public officials.