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The Small-r Republican Case for Prosecuting Rogue Officials

By Andy Smarick


In yesterday’s decision in Trump v. United States, the Supreme Court answered several important questions related to presidential power and duty, immunity, and criminal law. Though much needs to be said about the majority opinion, the concurrences, and the dissents, we should start by taking a step backward.

  The facts of Trump’s case are unquestionably important, yet a larger issue sits behind them: How are we to understand the potential criminal prosecution of any major public official in a republic? The phrase “in a republic” does important work in that sentence. In any nation, such potential prosecutions invite two competing arguments, both credible. But in a republic, like the United States, each argument carries even greater weight.

The first argument is that pursuing such charges will set off a never-ending cycle of retribution. For instance, since presidents control the federal government’s Justice Department, a political party could harass its opponents, and then when the other party gains power, it will do the same. Elsewhere, politicizing criminal justice has been the norm. Public officials and political thinkers often had to flee their homes when power changed hands. In some places today, running afoul of the regime can still land you in jail. Or worse.

  If a cycle of prosecution also became the norm in the U.S., it would not only undermine the rule of law in the long-term. A current leader might also be afraid to act in difficult situations because she could be prosecuted later. Worse, she might refuse to give up power out of fear that she would be prosecuted once out of office (consider Julius Caesar). And good people would probably not seek office because they wouldn’t want to get tangled in this legal web.

  The counterargument is that if we don’t prosecute officials who behave criminally, officials will learn that they are permitted to behave criminally. Since they can act with impunity, they will use the powers of their offices to punish their enemies, help their friends, and enrich themselves. They will ignore laws that are inconvenient. Unethical people will seek office because they can use state power for their own purposes.


A Republican Form of Government


Elsewhere I’ve described our republican form of government and its consequences for public life. Though recent discourse has obsessed over the influence of liberalism, our framers were crystal clear that they were committed to founding a republic. For instance, the words “republic” or “republican” are used more than 160 times in the Federalist Papers. Alexander Hamilton described our government as "wholly and purely republican," while James Madison titled Federalist 39 “The Conformity of the Plan to Republican Principles.” Article IV, Section 4 of the U.S. Constitution guarantees "a Republican Form of Government" at the state level. And these are just a few examples.


I argue that five principles define modern republics, America in particular:


Citizen equality. In a republic, there are no superiors—no monarchs, no aristocrats, no nobility. The law applies to all equally. Leaders are chosen from among equal citizens; they serve temporarily and then return to private life.


Popular sovereignty and democracy. Because citizens are equal, they participate equally in public life. They rule together; they are not ruled by betters. Most governing decisions are made democratically. Each citizen’s vote is equal.


Republican virtue. Citizens are not only expected to participate in public life (e.g., voting, public service, jury duty), they are expected to behave with honestly, civilly, selflessness, justice. The burden is even larger for leaders: They must never use governing authority for personal gain, nepotism, retribution, etc.


Common good. Virtue and equality require that citizens and their leaders seek to advance the interests of the entire community. The common good is more than the combination of private goods. Self, family, clan, party, and region must come after the whole.


Limited but active government. The state must never deny citizens’ rights, but the state has duties beyond the protection of rights. It is charged with advancing the common good; this can include safety, education, health, and more. Officials’ power, however, must never extend beyond the law. State authority exists to advance the common good; it cannot be used to undermine other republican principles (e.g., equality, democracy) and it cannot be used for private purposes.


The Case for Restraint


Republican principles can be helpful as we think about criminally charging public officials. They urge prosecutorial restraint in some areas and prosecutorial initiative in others.

  Three areas for restraint stand out. First, those in power must never concoct crimes or penalties to harass their political opponents. Officials are strictly limited by existing law. Judges must be vigilant in ensuring prosecutors do not invent creative interpretations of statutes or regulations for the purpose of political intimidation.

  Second, citizen equality prohibits prosecuting officials if other citizens would not be prosecuted in similar circumstances. A citizen in a temporary position of authority should not be more vulnerable to charges than a citizen not in a position of authority. Likewise, her previous or potential future service does not make her more vulnerable. So even if a law could be reasonably interpreted to allow charges, the official must not be charged if written prosecutorial procedures or standard prosecutorial practice counsel non-prosecution of non-officials.

  Third—this is the heart of the majority opinion in Trump vs. Unites States—prosecutors must avoid criminalizing defensible decisions made by officials acting within their duties. A governing office has legitimate authorities and responsibilities that are temporarily assumed by citizens who must exercise judgment. The common good requires that officials act—that is, after all, the purpose of the office—and there are many different ways to act lawfully while in that seat. Indeed, pluralism plus elections equals officials with different views holding the office at different times. The threat of criminal prosecution cannot have the effect of chilling the good-faith decision-making of legitimate officials. Prosecutors must show restraint when assessing the decisions of those acting in their official capacities. To be specific, prosecutors must give a wide berth to a diplomat engaging in negotiations, to a governor during a health crisis, to a president conducting a war, or to a school superintendent maintaining student safety.


The Case for Prosecution


At the same time, prosecutors must defend republicanism from rogue officials. In other words, excesssive prosecutorial restraint can be a vice. Sometimes prosecutorial initiative is needed. In one category—when officials break republican rules—prosecutors should act. In a second category—when an official’s behavior strikes at the heart of republicanism—prosecutors must act.

  In the first category are actions that are clearly outside of the law. These can be associated with official duties or be entirely private actions. For instance, if an official, in her private capacity, assaults a neighbor or steals from a business partner, she should be prosecuted (so long as the circumstances indicate she broke an existing law and a non-official would be prosecuted). To not prosecute would imply that the official is above the law and/or above other citizens. That is unacceptable in a republic. In some official capacities, only the official has the opportunity to operate outside the law. For instance, only a transportation official could break certain laws related to highway funds. In these instances, we cannot ask whether a non-official would be prosecuted in similar circumstances. But we can ask if the action can be reasonably defended as a judgment call made in a good-faith effort to advance the common good. For instance, there is a major difference between an education official directing a grant to a highly effective reading program using methods in a regulatory grey area and that education official embezzling grant funds to enrich his brother.

  Here, republican principles offer valuable guidance to prosecutors: Self-dealing, nepotism, and cronyism are anti-republican because an official is using public power for private benefit. If a state government has a limited executive pardon power, and the governor breaks those rules in order to grant clemency to himself or his child, then he should be prosecuted. If a bankruptcy judge gives an investor friend advance notice of a decision so she can quickly offload stocks, that judge should be prosecuted.

  The second category includes actions that are not only illegal but undermine the republican regime. These are the most dangerous actions, and they must be prosecuted. To be clear, these offenses go beyond behaving in an anti-republican fashion; instead, they strike at the ability of the rest of us to live in a functional republic. Examples would include a county official closing a polling station so his political opponents cannot vote; a police chief authorizing violence by law enforcement officials against a candidate she doesn’t like; a state’s secretary of state refusing to certify an election outcome he doesn’t want; a sitting governor refusing to transfer power peacefully to her successor.


A Bad Precedent


President Gerald Ford’s pardon of Richard Nixon for the latter’s role in the Watergate scandal is now widely viewed as an act of prudence and statesmanship. That assessment is wrong. Nixon should have been prosecuted. The House of Representatives had collected sufficient evidence to approve impeachment articles related to Nixon’s failure to uphold his constitutional obligations as president; his use of government agencies to harass political opponents; his violation of citizens’ rights; and his undermining of the criminal justice system. Such abuses of power are obviously anti-republican, but, worse, they strike at the republican form of government. We cannot live as equal republican citizens when the president fails to enforce laws, uses the power of the government to intimidate or harm opponents, obstructs lawful investigations, and subverts the administration of justice.

  It is not prudent to let such things slide. It is expedient. Nixon’s actions were by no means related to his legitimate powers and responsibilities. Using the IRS or FBI to go after perceived enemies is not a legitimate governing judgment call. Encouraging co-conspirators to lie is not in pursuit of the common good. It is essential that citizens know that such behavior will not be tolerated. It is essential that current and future officials know that they will be punished for such crimes.

  Moreover, we must never believe that past or future presidents should enjoy greater protection from prosecution than other officials. Presidents are not quasi-monarchs enjoying sovereign immunity. They are simply citizens serving in one of many temporary capacities in our system. It is a tragedy, but it is healthy for republicanism, when republican miscreants are held accountable. Federal judges have been removed from office and jailed. Many governors have been convicted. So too many members of Congress.


Preserving the Republic

Governing in a republic is terribly challenging, but when done well it can advance the common good. The same must be said of safeguarding the republican form of government. In our nation, that work obviously includes maintaining the separation of powers, preserving popular sovereignty and democracy, and protecting liberty. But it also includes ensuring that public officials don’t sabotage republicanism from the inside. The potential prosecution of public officials presents two risks along these lines. One is the use of the criminal-justice system to intimidate or punish political opponents. But with three types of safeguards—following the letter of the criminal law, administering justice fairly across all citizens, and respecting an official’s official duties—this risk can be managed.

  Of greater concern are the consequences of failing to prosecute those who undermine republicanism. I will have more to say about Trump vs. United States in the days ahead, but for now I will offer only this: The U.S. Supreme Court majority should have acknowledged and addressed the very real possibility that a president could damage republicanism while claiming to act in his official capacity.

We must never forget that republicanism is built on principles unusual in the history of governing. It holds that citizens are equal, that justice is blind, that leaders are temporary, that law is sovereign, that the common good trumps private gain, and that state power is limited. If we don’t guard these principles jealously, we risk reverting to history’s much more common principles of governing—that justice is the will of the stronger, that individuals are subjects not citizens, and that state power is to be used to help friends and hurt enemies.


Andy Smarick is a senior fellow at the Manhattan Institute.


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