“I don’t think a jury would convict him without proof of harm. I’m not sure I would…It has to be one-hundred-per-cent irresistible as a matter of law. There can be no fact, no event, no piece of evidence that could support any room for ambiguity.”
—NYU law professor and legal ethics expert Stephen Gillers, reflecting on the chances of conviction arising from an indictment of Donald Trump for violations of the Espionage Act and other statutes making the mishandling classified information a crime.
Gillers’ position is similar to that of Alan Dershowitz, who also said last week that while there appears to be sufficient evidence to charge Trump (based on the heavily redacted affidavit Trump was mocking in his meme above), it would be unwise to do so. It would also be unethical prosecutorial conduct unless there is a significant likelihood that Trump could be convicted. It is unethical to make “the process the punishment,” and Attorney General Garland knows it.
This is why the raid on Mar-a-Largo was suspicious as well as a terrible precedent in the first place. In the absence of any demonstrated urgency, the raid looked like an effort to “mess Trump up a little” by treating him like a drug kingpin or a Mafia crime boss rather than with the deference every other former POTUS has received. This made it political theater rather than legitimate law enforcement, executed by a struggling administration apparently terrified of the previous President and his passionate supporters.It is encouraging that Gillers would announce such skepticism, because the professor’s left-leaning bias has been a depressing marker of the ethics rot affecting most of our scholarly groups, including legal ethicists. (Review, for example, this Ethics Alarms post from 2020.)
In the New Yorker article by David Rhode titled, “The Dangers of Trump-Prosecution Syndrome,” a former Justice Department official agrees with Gillers saying, “The jury could say, ‘Who cares?’” But it’s obvious who cares: the people who furiously, fervently, hate Donald Trump beyond all logic, facts and reason, and who have been trying to bring him down by any means necessary since 2016.
This meme nicely sums up how the entire episode appears to a large segment of the country…
…because, at its essence, that’s what it is.
Rhode, as is typical of The New Yorker, can’t disguise his own anti-Trump bias. “Trump’s claims of planted evidence and “deep state” plots are false and dangerous,” he writes at one point. The claims of Deep State plots against Trump are “false”? Wow. It takes oodles of denial to write that today. What is dangerous is having a politicized domestic law enforcement agency of immense power abusing that power as the FBI has done repeatedly.
He also describes Trump as a “reality-television star turned President.” That’s a tell: Rhode is resorting to one of the earliest “resistance”/Democrat/ mainstream news media Big Lies used to smear Trump going back to the beginning of his first campaign (it’s #1 on the Ethics Alarms list.) Describing Trump as a reality TV star when he ran for President is like saying Dwight Eisenhower was a college president before he ran. Trump was a successful businessman, entrepreneur and corporation executive, and those roles provided the background and experience that arguably qualified him to run.
Later, Rhode writes, “During the Trump Presidency, Republicans, sometimes mockingly, accused liberals of suffering from ‘Trump Derangement Syndrome,” or what they claimed was an exaggerated fear or hatred of Trump.”
Gee, I wonder what would ever cause them to think that?