Political Justice is No Justice at All

So, the Democrats have gone and done it. Manhattan District Attorney Alvin Bragg has persuaded a local Grand Jury to indict former President Donald Trump on charges related to the alleged payment of “hush money” prior to the 2016 presidential election. Doubtless there will be a great deal of commentary in the news media by an assortment of lawyers, judges, legal scholars and others regarding legal strategy, the likely outcome of the case, and its impact on the 2024 presidential election. The reader can find that anywhere. What I propose to do in the lines that follow is to put this prosecution into appropriate historical context.

So far as I know, the arrest and indictment of a former president of the United States is unprecedented. I can think of only three remotely similar events. First is the capture and imprisonment of Jefferson Davis. But he was president of the Confederacy, not the United States, so that doesn’t count. In any case, although he led a genuine insurrection, he was never indicted or tried despite being held in captivity without trial for over two years—much like the J-6 political prisoners currently being held in the D.C. lockup.

The second such event, and probably the most famous is the 1807 treason trial of Thomas Jefferson’s first vice-president, Aaron Burr. The trial was presided over by Chief Justice John Marshall and resulted in an acquittal. Far more important than the trial’s impact on Burr’s political career, was its impact on the legal definition of treason. Marshall’s decision established a precedent for a narrow definition of that crime that is with us today—probably to the great frustration of the would be Javerts in Democratic controlled district attorney’s offices around the country.

The only other such event that springs to mind is the arrest and conviction of perennial Socialist Party candidate for president, Eugene V. Debs for violation of the Sedition Act 1918. Of course Debs was neither a president nor a former president, but he did run for president from his cell in Atlanta Federal Prison in 1920.

But more important than the fate of various former presidents, vice-presidents, and rebel leaders, are the precedents set during the early republic. Most important is the idea of the “loyal opposition,” established in the wake of the election of 1800, which created the precedent that the opposition political party can still be loyal to the nation. Prior to that election presidents [Washington and John Adams] had come from only one political party, the Federalists. But, as a result of the 1800 election Thomas Jefferson, a Republican [not the GOP] was elected. For the first time power would be transferred from one party to another. The question was whether it could be done peacefully. We, at least until recently have taken that for granted—although the election of Abraham Lincoln in 1860 prompted Confederate secession that triggered the Civil War. But in 1801, that was not assured. Angry Federalists didn’t trust Jefferson’s Republicans not to unjustly prosecute them and throw them in jail—as Federalists had done to a number of Republican newspaper editors and congressmen just a couple of years earlier. Accordingly they threatened to call out the army to prevent Jefferson from taking office. In response, some Republicans considered calling upon the militia. In short, the two parties were on the brink of civil war. Had cooler heads not prevailed the republic may have been destroyed at that time and all the European and other skeptics who doubted that men could govern themselves would have been proven right. The common man, they would have said, was not fit for self government. Those in power would always abuse it. The resolution of this crisis in 1800 established the American tradition of political toleration of the opposition party without which democratic politics cannot exist.

The political persecution of Donald Trump by government forces in the hands of his enemies raises this question once again. Politicized justice threatens to tear the nation apart. Political justice is no justice at all.