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Dangerous Overreach in Manhattan and Tennessee

April 11, 2023

To sustain a constitutional democracy, public officials must do more than obey written laws. They must respect the unwritten ones that have cumulated over the years. Together, they are the cement of our society. Unfortunately, in recent weeks, we’ve seen two disturbing cases of elected officials smashing those unwritten rules. One was a Democrat, Manhattan District Attorney Alvin Bragg; the other was Tennessee’s Republican legislature.

Both were exercises in bad judgment. Although the actions seem to have been legal, they trampled over informal norms of long standing. Crushing those norms not only invites retaliation, it undermines public confidence in the fairness and good sense of elected officials, if any still lingers.

Alvin Bragg had every legal right to convene a grand jury, present them with his case against Donald Trump, and work to indict the former president. It’s not hard to convince grand juries, and Bragg succeeded. If the trial is held in Manhattan, he will present the case to a Trump-hating jury, ready to mete out punishment.

Still, the case is thin and tendentious. That’s why Bragg’s predecessor declined to move forward with it. Not Bragg. He has collected several alleged misdemeanors and ramped them up to a felony by linking them to another alleged crime. What is that other crime? Bragg won’t say. Apparently, New York law doesn’t require him to say, so he won’t, despite the obvious national interest.

Bragg also has the right to try to show that New York State election laws were violated, even though specialists in that field at the Department of Justice and Federal Election Commission decided there were no violations. Ignoring the statutes of limitation, which expired long ago on these alleged crimes, is a tougher sell, but the courts will have to rule on all these issues. All that will take time, however. Meanwhile, the case hangs over the 2024 presidential campaign.

There is also the troubling question of unequal treatment. The conduct Bragg alleges to be criminal is not the salacious act of making hush payments to a porn star. It is that Trump hid those payments as a business expense, and did so to help his presidential campaign. If so, he’s not alone. Another New York resident, who lives in Chappaqua, listed all her payments to create the Russian collusion hoax as “legal expenses.” They’ll find Jimmy Hoffa’s body before New York ever investigates that crime.

When prosecutors pursue political vendettas, as Bragg has, they undermine two pillars of our legal system. First, the law should be impartial. That’s especially important when the targets are controversial political figures. Second, law enforcement should begin with a crime and then look for the perpetrator, not the reverse. It should never begin with a target and then look for a crime to pin on him.

Bragg’s approach is fundamentally different from the cases being developed in Georgia and Florida. Those cases appear much stronger, but that’s not their only difference. They began with specific allegations of felonies. In Georgia, there were recorded phone calls from Trump and his allies to senior state officials, pressuring them to find enough additional votes to win Georgia’s presidential contest. At issue is whether Trump and his supporters were seeking legitimate votes which had not been properly counted (his position), or non-existent votes to fraudulently pad his total. In Florida, there are really two issues. Did the former president have a right to retain certain documents from his White House years or was he required to turn them over to the National Archives, as they demanded? Second, did he obstruct justice when he later declared he had turned over all relevant documents? Despite that formal declaration, a subsequent FBI search found he had retained many of the requested documents at Mar-a-Lago.

Special Counsel Jack Smith is pursuing yet another angle, this one involving Trump’s role in the events of Jan. 6 and perhaps other issues. The problem with all special counsels, including this one, is that they fall somewhere between “starting with a crime” and “starting with a target.”

Bragg’s indictment poses two additional difficulties, perhaps the most serious of all. It breaks a long-standing precedent and sets a new one. The broken one is prosecutors declining to indict former presidents. If that precedent is to be broken, the case should be formidable, involve a major crime, and be grounded in well-established law. Bragg’s case fails on all those criteria, which is why it looks like a partisan witch hunt.

Because Bragg leveled these charges as a local prosecutor, he has set a precedent of his own – a very bad one. He has opened the door for similar actions by Republican district attorneys across the country, who could go after former Democratic presidents for their own partisan reasons.

Still, Bragg has the legal authority to take the actions he has. So does Tennessee’s Republican legislature, which expelled two Democrats for breaking the House’s basic rules. There’s no question the legislators flagrantly violated those rules and blocked all business for an hour. There’s no question the Tennessee legislature has the authority to punish them.

The punishment they chose, however, goes too far. It’s legal but unwise. That’s not an excuse for the expelled members’ behavior. No legislature can tolerate its members seizing control of the House well, yelling into a bull horn, and disrupting all other business. To compound the problem – and the danger – the members’ disruption came in support of a mass demonstration inside the capitol building itself.

Still, expelling state legislators for breaches of House rules is an exercise in bad judgment unless the breaches are repeated or violent. These were not. They were serious, first-time offenses, and they were non-violent. Some sanctions are certainly appropriate, but expulsion goes too far for several reasons.

First, it deprives constituents of their elected representatives, at least until replacements are named.

Second, the case seethes with racial tension because the two expelled members were black. Race should not matter in dealing with these violations, but, inevitably, it does. It certainly affects how people see the expulsions, which only deepens our national divisions over race.

Not surprisingly, Democratic leaders have jumped on the story, decried the punishment, and moved to support the expelled representatives. Their party counts on near-unanimous support from black voters, so Democrats look for opportunities like this to demonstrate their solidarity. Vice President Kamala Harris didn’t miss her chance. She immediately flew to Nashville to offer her backing. Others are sure to follow.

Like-minded friends in the legacy media were quick to note that a white legislator was not expelled, even though she had joined her two black colleagues in the well of the House. They say she got better treatment because of her race. Others respond that her case was different because she stood silently and was not disruptive. (She held onto her seat by a single vote.)

Third, expulsions like this encourage other elected bodies to act the same way. State legislators, city councilmen, and school board members don’t always stick to the rules or observe decorum, so tit-for-tat treatment could proliferate as each party considers expelling its opponents.

Finally, expulsions like the one in Tennessee undermine the informal rules and procedures that preserve our democracy. Granted, the expelled legislators had violated the rules themselves. Important rules. But excessive punishment represents more than an eye-for-an-eye. It is two eyes. Its aim may be to restore order but its practical effect is likely to be the opposite.

The overall message, both in Tennessee and Manhattan, is more than “both sides do it.” The deeper message is that preserving our democracy requires prudence, good judgment, and some self-restraint by elected leaders and judges. Those qualities are now endangered species, killed by the bitter politics of payback and revenge, cloaked in self-righteous contempt for opponents. The tide of vitriol is rising. That’s another swamp that needs draining.

This article was originally published by RealClearPolitics and made available via RealClearWire.

Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics, and Security. He can be reached at charles.lipson@gmail.com.

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