The phrase “no one is above the law” has a long and storied history. But in the age of Trump it is coming to seem like nothing more than a comforting legal fiction.
Over the last several years, the former president has given something of a master class in showing how to poke holes in the law. Donald Trump’s record of avoiding responsibility is not perfect, but this past week brought more bad news in the quest to show that he is not above the law.
As the New York Times reported, “A state grand jury in Arizona that charged 18 people this spring in a scheme that sought to overturn Donald J. Trump’s 2020 election loss wanted to indict him, too.… But prosecutors … recommended that Mr. Trump should not be charged, citing a Justice Department policy that discourages bringing state and federal cases against the same defendant that are largely based on similar facts.”
The Arizona prosecutor’s decision is a serious legal and political mistake.
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The Justice Department’s policy specifically establishes “guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.” It has absolutely nothing to do with what an Arizona prosecutor can or should do.
As the Times noted, “The grand jurors investigating allegations of interference in that state’s election seriously considered bringing charges against Mr. Trump. Some of the grand jurors even appeared to be upset when a state prosecutor suggested they should not.”
They were right to be upset. The decision to let Trump skate by following the Justice Department policy was purely discretionary, and it was a bad one.
It further fuels the perception that Trump is a legal Houdini escaping another jam.
Responding to the chagrin of the grand jurors about the decision not to indict Trump, the prosecutor said, “I know that may be disappointing to some of you.” But it was more than that. It is a disappointment to anyone........