By Victor Davis Hanson
As we await the publication of all the impending indictments of former President Donald Trump by Manhattan District Attorney Alvin Bragg, Americans are trying to figure out what constitutes an indictable offense for current and retired public officials.
Most legal experts, Left and Right, have noted:
1) Bragg promised in advance that he would try to find a way to indict Trump. His prior boasts are reminiscent of Stalin’s secret police enforcer Lavrentiy Beria’s quip, “Show me the man and I’ll show you the crime.” Nancy Pelosi gave the game away, when in her dotage, she muttered that Trump had a right to prove his innocence as if he is presumed guilty.
2) No former president has ever been indicted—and for good reason. Such prosecutions would be viewed as persecutions and render all former presidents veritable targets of every publicity-hungry and politically hostile local, state, or federal prosecutor. They would reduce the presidency to Third World norms. Gratuitously prosecuting former presidents would become a political tool to harm the opposing political party or to tarnish the legacy of a former president.
3) Trump is currently ahead in the polls for the Republican nomination to face Democratic incumbent Biden. And in head-to-head matchups, he outpolls Biden. For a prosecutor of the same party as the current president facing reelection to seek to destroy the viability of a likely opponent is a first in U.S. history. But again, it is now in accordance with Third World norms.
4) At least two left-leaning federal and state prosecutors previously have passed on the same evidence Bragg is now using for his indictments. They have explained that such a prosecution is infeasible because of statutes of limitations, because of a state attorney improperly appropriating the role of a federal prosecutor, and because non-disclosures agreements are a fact of life and not strictly illegal.
5) Bragg’s chief witness Michael Cohen is a felon and confessed liar, with a deep personal hatred of Donald Trump—a fact well known to all potential prosecutors.
6) The current indictment follows a long line of historic harassment of Trump, including the first incidence of two impeachments of a sitting president, the first impeachment trial of a president as a private citizen, and the first FBI armed raid of a retired president’s home, the first instance of an FBI director leaking confidential presidential conversations to the media for the purpose of appointing a special counsel to remove a president.
Such asymmetry also raises questions about the equal application of our laws as they apply to all our other officials, current and out-of-office.
Or, to put it another way: what crime did Trump not do that others did with either impunity or without being arrested? Here is a sample of 20.
1) Trump did not violate federal law, as did Hillary Clinton, by destroying federally subpoenaed emails and devices in order to hide evidence.
2) Trump did not violate federal law, as did Hillary Clinton, by sending classified government communications on her own, through an unsecured home-brewed server.
3) Trump did not violate federal law, as did Hillary Clinton, by hiring—through three paywalls—a foreign national, who is prohibited from working on presidential campaigns, to compile a dossier to smear her presidential opponent.
4) Trump did not violate federal campaign laws, as did Hillary Clinton, by hiding her payments (as “legal services”) to Christopher Steele through bookkeeping deceptions.
5) Trump did not, as did Bill Clinton, use a crony to search out a high-paying New York job for a paramour in order to influence her testimony before a special counsel.
6) Trump did not, as did Bill Clinton, receive a $500,000 “honorarium” for speaking in Moscow while his wife, our secretary of state, approved a longstanding and lucrative desire of the Kremlin for North American uranium to be sold to a Russian consortium.
7) Trump did not, as did Barack Obama, promise Vladimir Putin that he would be “flexible” on “missile defense” if during his own reelection bid Putin in return would give him “space”. That quid pro quo arrangement led to the U.S. abandonment of key joint missile defense systems with Poland and the Czech Republic, and, reciprocally, less than two years later a Russia invasion, mostly unopposed by the United States, of eastern Ukraine and the Crimea.
8) Trump did not boast publicly, as did Joe Biden, that he used U.S. foreign aid monies as leverage to have the Ukrainian government fire a prosecutor who may have been looking into the Biden family’s efforts to sell influence to corrupt Ukrainian interests.
9) Trump did not, as the Bidens did, set up a family consortium to leverage monies from Ukraine, Russia, and China, on their shared expectations that he might soon run for and be elected president and become compromised. Trump is not mentioned, as is Joe Biden, in family business communications as a recipient of a 10 percent commission on such payoffs.
10) Trump did not, unlike Joe Biden, remove presidential papers—without any authority to declassify them—and leave them scattered and unsecured in a garage and various residences and offices.
11) Trump did not, as did the FBI, wipe clean subpoenaed mobile phone records.
12) Trump did not, as did interim FBI head Andrew McCabe, admittedly lie under oath on four occasions to federal investigators.
13) Trump did not, as did CIA Director John Brennan, admittedly lie on two occasions while under oath to the U.S. Congress.
14) Trump did not, as did Director of National Intelligence James Clapper, admittedly lie on one occasion to the U.S. Congress.
15) Trump did not, as did James Comey, claim amnesia or ignorance 245 times while under oath before the U.S. Congress.
16) Trump did not, as did FBI Director James Comey, summarize a confidential private conversation with a president and then deliberately leak that classified memo to the media for his own agenda of appointing a special counsel to investigate the president—which turned out to be his friend Robert Mueller.
17) Trump did not, as did Robert Mueller, claim ignorance while under oath when asked about the Steele dossier and Fusion GPS, the catalysts for Mueller’s own investigation.
18) Trump did not, as did private citizen and former secretary of state John Kerry, meet clandestinely while out of office with Iranian officials to help them resist current U.S. policy toward Iran—or what the Boston Globe characterized as “unusual shadow diplomacy” to “apply pressure on the Trump administration from the outside.”
19) Trump did not, as did the FBI and CIA, pay clandestine money to Twitter to monitor and smother news stories deemed unhelpful to their agendas.
20) Trump did not, as did then-Senate Minority Leader Chuck Schumer, whip up a mob at the doors of the Supreme Court by threatening two sitting justices by name to intimidate them concerning an impending judicial ruling: “I want to tell you Gorsuch, I want to tell you Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you.”
In subsequent months, mobs of protestors swarmed the private homes of these two named justices to influence their decisions, a federal crime that was ignored by Attorney General Merrick Garland, but not by a self-confessed, potential assassin of Justice Brett Kavanaugh who later turned up in the neighborhood.
What are we to make of these radical disparate applications of laws and protocols? The Left repeatedly breaks laws and long-held customs with impunity by weaponizing federal offices and bureaus, whether defined in the legal sphere by mostly exempting 120 days of mass rioting, looting, arson, mayhem, and lethal violence in the summer of 2020, or procedurally by denying the House minority leader the right to nominate his party members to committees, or ceremonially having the speaker of the House tear up the presidential State-of-the-Union Address on national television.
By any fair application of past tradition and the law, Joe Biden and Alejandro Mayorkas should be impeached for their deliberate efforts to subvert U.S. immigration law for political purposes. By any just measure, Joe Biden should be the target of a special counsel’s investigation to ascertain how and why the Biden family received hidden funds from foreign governments and whether Biden himself paid taxes on such large sums.
It is the revolutionary Left that attacks institutions deemed unhelpful for its current political agenda—one that rarely warrants 50 percent public approval—whether that effort is defined by threats of ending the filibuster, scrapping the Electoral College, adding two more states, packing the court, or radically changing balloting laws and customs to turn elections into a 70 percent no-show of voters on Election Day.
All of the above is predicated on a simple premise: Were the opposition to match tit-for-tat these Democratic means, then the republic would quickly descend into a spiral of illegality and chaos analogous to what ended the late Roman Republic. That fact is well known to the new hard-left Democratic Party. So it has assumed the role of the spoiled teen who feels he has a blank check of lawless behavior that his parents would not dare emulate, given that for adults to do so would destroy the family.
In other words, the Left is saying to America something along the following lines, “We are so morally superior to you that we can and must employ any means necessary to achieve our unpopular political ends. But you cannot respond in kind or deter us by mimicking our own tactics, because should both parties do so, the resulting disorder would undermine the republic. And that is something you won’t dare do.”
About Victor Davis Hanson
Victor Davis Hanson is a distinguished fellow of the Center for American Greatness and the Martin and Illie Anderson Senior Fellow at Stanford University’s Hoover Institution. He is an American military historian, columnist, a former classics professor, and scholar of ancient warfare. He has been a visiting professor at Hillsdale College since 2004. Hanson was awarded the National Humanities Medal in 2007 by President George W. Bush. Hanson is also a farmer (growing raisin grapes on a family farm in Selma, California) and a critic of social trends related to farming and agrarianism. He is the author most recently of The Second World Wars: How the First Global Conflict Was Fought and Won, The Case for Trump and the recently released The Dying Citizen.