In a New York Times guest essay, former assistant attorney general in the George W. Bush administration Jack Goldsmith argued that the Biden administration's push to prosecute former President Donald Trump may be a "tragic" one that could have "terrible consequences" for America.
Goldsmith warned the prosecution may backfire even if it results in a conviction of the former president.
He worried that the effort will likely paint the Department of Justice as an "irretrievably politicized institution" for much of the country that already view the department with suspicion following the Russian collusion investigation into Trump and seeming softball treatment of Hunter Biden’s scandals.
Additionally, the essay voiced concerns that Trump's prosecution may lead to future administrations and Congress pursuing tit-for-tat investigations, and an era where politics are increasingly "criminalized."
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Goldsmith began his piece with the warning for those eager to see Trump punished, writing, "It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions."
Before noting the consequences, the author mentioned the shakiness of DOJ Special Counsel Jack Smith’s case against Trump, stating, "Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power."
Goldsmith added, "If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster."
But even if the prosecution is successful, the author wrote, "the costs to the legal and political systems will be large."
Goldsmith argued that the Biden administration is clearly prompting the indictment and making it look political. "There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden," he wrote.
The former Bush official observed, "This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season."
He also claimed, "The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated."
Goldsmith also noted the context within which this prosecution is happening. He stated, "This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election."
He also mentioned "the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation."
Those two realities are "the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump," the essay argued.
As such, Goldsmith surmised, "These are some of the reasons the Justice Department, however pure its motivations, will likely emerge from this prosecution viewed as an irretrievably politicized institution by a large chunk of the country."
He added, "Its predicament will now likely grow much worse because the consequences of its election-fraud prosecution are so large, the taint of its past actions so great and the potential outcome for Mr. Biden too favorable."
In addition to the DOJ looking political, he claimed the prosecution "will likely inspire ever-more-aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposite party, to the detriment of sound government."
Goldsmith also wrote that "It may also exacerbate the criminalization of politics," and explained, "Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of, and amid demands for, special counsels, indictments and grand juries."
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