'Race to the bottom': Legal experts fear escalation spiral ahead of possible Trump indictment

Ahead of a prospective indictment of former President Donald Trump, legal experts and elected officeholders are warning that such an unprecedented move may spur a dangerous escalation spiral of retributive political prosecutions that undermine the nation's justice system.

Trump announced last week that he expected to be arrested imminently. While that arrest has not yet occurred, the prospect of a Trump indictment looms large as Manhattan District Attorney Alvin Bragg continues his investigation into an alleged 2016 hush money payment to porn actress Stormy Daniels.

Bragg's case may rest upon the argument that a Trump payment to Daniels via his former personal attorney, Michael Cohen, could be a campaign finance violation that the former president concealed by allegedly falsifying business records. Federal prosecutors have previously rejected the case, and some legal scholars have deemed it a farce.

The case lost further credibility on Wednesday with the surfacing of a purported 2018 letter from Cohen's attorney to the Federal Elections Commission attesting that Cohen acted alone and Trump was not party to the transaction.

Many experts have branded the prospective case a political prosecution, citing legal weaknesses and witnesses of questionable credibility.

George Washington University law professor Jonathan Turley fears the possibility of Republican prosecutors retaliating by pursuing similarly flimsy cases against high-profile Democrats, fueling a self-perpetuating cycle of politicization.

"My concern is that this could trigger a type of tit-for-tat response where Republican prosecutors seek to weaponize criminal charges against Democrats," he told Just the News. "We cannot afford a race to the bottom in political prosecutions. Such prosecutions will only magnify the rage that is already pulling this country apart."

Turley believes Bragg is being influenced by external political pressures, including the publication of a book by a former prosecutor in his office.

"What is so untoward about this case is that the public watched as Bragg knuckled under to the political pressures to bring this case," he said. "Like others, Bragg clearly had doubts about the case and halted the push to the grand jury. That led to the very public resignation of two prosecutors.

"One of those prosecutors then took the highly controversial move of publishing a book based on his investigation to make the public case against a person who was not indicted, let alone convicted ... it worked. Bragg caved to the overwhelming political pressure. Bragg has reduced the criminal justice system to prosecution by plebiscite."

Turley is not alone in fearing the prospect of activist prosecutors politicizing criminal cases. Missouri Attorney General Andrew Bailey sees parallels between Bragg's handling of the Trump case and the record of fellow George Soros-funded prosecutor Kimberly Gardner in St. Louis.

"Look, these Soros-backed prosecutors are not prosecutors," he said Wednesday on the John Solomon Reports podcast. "They're activists that are disguised as prosecutors. It used to be in this country that we elevated the rules of the game above their players and the outcome. And the left has abandoned that."

Gardner "is unlawfully refusing to do her job instead of protecting victims," Bailey argued. "She's creating more victims by her unlawful refusal to do her job."

Bailey has filed a petition in state court for the removal of Gardner from office, calling her a "failed circuit attorney."

"We're taking all legal action and keeping our foot on the gas pedal to expedite that process within the confines of due process and due diligence in order to restore the rule of law and justice for victims in the city of St. Louis," he said.

Gardner was reprimanded and fined by the Missouri Supreme Court for professional misconduct in her prosecution of former Missouri Republican Gov. Eric Greitens. After driving Greitens from office with a lurid felony invasion of privacy charge, she later dropped all charges and admitted to lacking key evidence in the case.

Harvard Law School Professor Emeritus Alan Dershowitz excoriated Bragg's prosecution of Trump in an interview Monday on the "Just the News, No Noise" television show.

"[I]t's a virtual certainty that there will be an indictment for this Mickey Mouse charge," said the renowned civil liberties lawyer, who represented Trump during his first impeachment trial. "You know, they spent months trying to figure out what crimes they can charge — exactly the opposite of what you're supposed to do.

"Justice [Robert H.] Jackson once said any prosecutor can rummage through the statute books and figure out some technical offense to pin on anybody. But that's not the way the law should work. The law should first find out there's a crime, then try to find out who did it, not the opposite: Let's get this guy, let's let's create a crime."

Both Bragg and New York Attorney General Letitia James campaigned on a promise to "get Trump," Dershowitz recalled.

"Their campaign," he said, "was 'get Trump.' I've never heard of that before, where prosecutors run for office on the promise to prosecute a particular individual. That's just not right. And it just violates their oath of office."

The Founding Fathers, Dershowitz explained, sought an elite, independent judiciary insulated from electoral pressures.

"The framers didn't want elected judges," he said. "They wanted appointed judges" comprising "an elite institution to serve as a check on the popular branches of government. And the last thing we need is popularly elected — and unelected — law enforcement officials.

"We ought to adopt a system that almost every other country in the world has, of civil service prosecutors, coupled with judges who are appointed by panels of very distinguished people, so we get the best people." 

Ben Whedon is an editor and reporter for Just the News. Follow him on Twitter.