Crimes of the powerful: Why the Mar-a-Lago “special master” decision is so dreadful

When it comes to the crimes of the powerful, whether we are talking about Wall Street fraudsters, multinational corporate offenders or ex-presidents of the United States under investigation for seditious conspiracy or espionage, the bar for prosecution should be of a lower rather than of a higher nature. Why? Because the social realities of justice in America are already stacked in favor of the powerful perpetrators of crime.

To hold such accused perpetrators to a higher bar for indictment or prosecution only serves to reinforce the existing biases of our justice system, favoring the powerful at the expense of almost everyone else in society. 

In the case of U.S. District Judge Aileen Cannon’s decision to appoint a special master in the case of Donald Trump’s purloined documents, recently seized by the FBI in its search of Mar-a-Lago, Duke law professor Sam Buell tweeted that “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”

Similarly, Andrew Weissmann, who has 20 years of experience as a federal prosecutor and 10 years as a defense attorney, tweeted: “In none of the rare Special Master appointment cases — of attorneys like [Michael] Cohen and [Rudy] Giuliani — did the court ENJOIN the criminal investigation. Less factual merit and far worse legal ruling.”

Weissmann refers to the fact that Cannon’s order prevents the Justice Department from using the documents in question as part of its criminal investigation into Trump, at least until the not-yet-appointed special master has gone through those thousands of pages.

On MSNBC’s “Morning Joe” on Tuesday, Weissmann predicted that Cannon’s decision could delay a possible indictment for several months, possibly killing any prosecution of Trump altogether.

When it comes to prosecutorial discretion, the crimes of the powerful are far too often viewed as “beyond incrimination,” as contrasted with the crimes of the powerless. Ordinary offenders are often prosecuted and punished for non-serious or even insignificant offenses that have few consequences for society. 

But if we speak of the legal logic of criminalization or the goal of deterring the crimes of the powerful, such indictments should be made easier — not harder than they already are. Punishments in such cases should be harsher too, rather than ceremonious or possessed of little or no punitive value. For example, most convicted white-collar offenders receive financial “slaps on the wrist,” which in nearly all cases represents forfeiting a smaller sum of money than they illegally appropriated. 

The only logical conclusion to draw from these practices of extreme punitive leniency or outright non-enforcement of the law when it comes to corporate and state offenders is that their criminal behavior is consistently rewarded, both economically and politically. No individual in U.S. history personifies this kind of class-based and political injustice as much as Donald Trump does. 

With respect to current or former presidents, the excuses used in demanding a higher rather than lower bar for criminal prosecution have nothing to do with the crimes perpetrated, and are entirely a function of politics. The proximate questions seem to be whether the political party with executive power is the same or different from the rule-breaker’s party, and whether one party holds congressional power while the other holds executive power. 

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In the case of Trump, the first functional argument for a higher bar reflects the current legal-political discourse that has been circulating since Jan. 6, 2021: That is, with a Democrat in the White House, the government is reluctant to pursue the prosecution of a former president that will inevitably be perceived as political retribution. The second functional argument was in play, in different ways, during and after Trump’s two impeachment trials: The first occurred while Trump was in office, when Democrats had a majority in the House but not the Senate; the second occurred after Trump had left office, with Democrats holding narrow majorities in both chambers. 

I would argue that all possible justifications for a higher prosecutorial bar, when it comes to indicting a former president who has habitually broken the law, before, during and after possessing executive power, are and should be totally irrelevant. If, that is, we are supposed to have a constitutional democratic republic.

To take these questions of political power into account — or, even worse, questions of unknown potential political outcomes —when deciding to prosecute or not to prosecute is to politicize justice. Regardless of the intention, to politicize lawlessness and turn the justice system into an instrument of politics (which is exactly what Trump wanted as president) is nothing less than a full-frontal attack on the core American principles of due process and equal justice for all. 

Let us observe that these justifications would never even be raised under the Biden administration if Attorney General Merrick Garland and the Justice Department were, for example, contemplating whether to indict Barack Obama for some reason. Instead, the government would likely be praised for its integrity and there would be near-total silence about a “higher bar,” even as the relevance of critical race theory would play out within the chambers of prosecutorial discretion.  

Similarly, when Republicans began to contemplate prosecuting Richard Nixon if he refused to resign from office in 1974, there were never any concerns that doing so would contribute to democratic breakdown, to overzealous enforcement of the law, to a precedent of backlash in which each new administrations would investigate its predecessor or to the abuse of prosecutorial authority to score political points.  

With respect to both the Watergate scandal and the entirely hypothetical Obama case, the fundamental argument for holding the powerful parties accountable would be quite the opposite. Not to hold such violators accountable would be understood as undermining the basic constitutional principle that justice is blind and applies to all, and that it does not matter who is being investigated or accused.

Unfortunately, reality in the U.S. is that we do not live by that principle. We have two contradictory standards of justice — one for those who hold power and another for those without it — and persons in the former category, especially corporate “persons,” are treated as though they exist outside the law and cannot be held accountable for their serious harms against society. Meanwhile, those in the latter category — in effect, ordinary citizens — are treated as fully accountable for far less serious offenses and are far too often subject to overzealous penal sanctions.