Malicious Prosecution?

When does prosecutorial overreach become malicious prosecution? The Justice Department illegally surveilled (false FISA warrants) Donald Trump, dogging him for years – on a false premise. Now, we have four indictments, two local, two federal – one involving alleged violations of the 4^th Amendment, all launched by arch-partisans. How much is too much?

Does the pattern of dogging Trump matter? Is this just impartial administration, nothing to see here, nothing political, just a standard criminal pursued on the merits – or is this something far worse, something new and intolerable in our truth-based republic, an affront to the “rule of law?” Is this political warfare – gone legal?

Before noting corroborating facts – like what happened to Hillary Clinton and her server-smashing entourage, President Biden and his foreign-funded son, or Comey, McCabe, Strzok, Page, and Brennan – just pause.

What is malicious prosecution? Or, turning that question on its head, what should prosecutors do? How are the custodians of justice supposed to behave? What does fairness look like?

For one thing, fairness is not political. The Rule of law – in a non-corrupt republic – requires an iron wall between politics and the administration of justice. Selective law enforcement, or favoring political friends and disfavoring adversaries, is Public Corruption 101– not the rule of law.

Everything about the “rule of law” reflects this understanding. Without impartiality, there is no law, no respect for what leaders call the law, no trust in the law, and no willingness to abide by the law. Put differently, when the well of justice is poisoned by politics, civil order gets sick – and can die.  

Consider what the Greats say societies need to survive. Wrote Plato: “The worst form of justice…is pretended justice.” In other words, politics in place of justice kills justice. Plato knew something about that, too – he watched Socrates get convicted, forced to death on hemlock.

Wrote Aristotle: “At his best, man is the noblest of animals – but separated from law and justice, he is the worst.” So if we consult conscience for truth, we stay noble; if we do not, we lose it.

Maybe that is what Mahatma Gandhi wrote: “The court of conscience … supersedes all other courts.” If we forget right from wrong, we humans – including prosecutors – get off track.

All this comes back to “malicious prosecution.” If fairness, impartiality, and avoiding politics are how things should work, what is the opposite? What is malice being used by a prosecutor?

Malicious prosecution is the textbook perversion of justice – a suit “instituted primarily because of a purpose other than that of bringing an offender to justice,” or “against another maliciously and without probable cause,” or “begun in malice,” with “ill will” or a “desire to cause distress.”

Hmmm. Anything come to mind? With a presidential election pending, could prosecutors with “ill will” toward Trump, including one known for overreach, have other purposes in mind? Could dislike become malice, perhaps feed a “desire to cause distress?” Can prosecutors be partisan?

The tort of “malicious prosecution” requires a prosecution that ends favorably to the prosecuted, plus a showing of malicious intent, damage to liberty, reputation, or suffering. Sound like it fits?

Look at how Justice has behaved toward Trump. They opened an FBI investigation which, it turns out, was based on false information from Hillary Clinton, his 2016 rival – a fact briefed to Mr. Obama and Mr. Biden during that 2016 campaign (which raises other questions).

After Trump won, he was hit by continued investigation, Justice-sourced untruths, misrepresentations, and stories leaked to an eager press. False allegations fed congressional investigators, producing two impeachments, both notably lacking in traditional due process.

“Malicious prosecution” requires Trump to prevail in just one case – showing it involves malice. Truth is, we are in uncharted waters – a former president facing flimsy indictments, partisan prosecutors, sitting president enjoying immunity from investigation for highly suspicious acts.

All this occurring at the start of the supercharged 2024 presidential election – with the two men leading in pursuit of their respective party nominations.

In the grand scheme, a “someday suit” for “malicious prosecution” may be small potatoes, but the Republic is in the grips of a series of constitutional crises, and public trust is extremely low.

Trump may not win any of these suits, let alone nomination or election. Biden may not survive scrutiny, could be impeached, indicted, not be his party’s nominee, or get reelected. But malice is at play. That is dark. These suits against Trump certainly look…a lot like malicious prosecution.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.