United States Justice Department investigation into attempts to overturn the 2020 presidential election

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• On July 26, the plea agreement was challenged by the judge in the case.
• She wanted to know more about any immunity being offered, given that Hunter Biden is under several federal investigations.
• From my perspective as a political scientist, I believe that while special counsels are intended to be independent, in practice they aren’t entirely.

Independent and special counsels

• President Richard Nixon did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.
• On the evening of Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation.
• After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other high-ranking executive branch officials had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate.
• That year, then-Attorney General Janet Reno authorized the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.
• In 2020, John Durham – another veteran of the Justice Department – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment.

Politicizing the process

• For instance, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general.
• In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice of the United States.
• Also, since Congress authorized independent counsels, presidential influence was limited by law.
• Sessions was later replaced by William Barr, who previously served as attorney general under President George H.W.

To be or not to be free of partisanship

• The independence of the Justice Department rests, in part, on who occupies the offices of president and attorney general.
• The second, Robert Hur, is overseeing President Joe Biden’s handling of classified documents after leaving office as vice president in 2017.
• As a result, the perception of political prosecution can be hard to avoid.
• This is an updated version of an article published Jan. 13, 2023, which was an updated version of an article originally published Dec. 14, 2022.

• Trump is now the subject of three federal and state criminal cases – and it is true that he is being treated unlike other criminal defendants.
• We are law scholars who have defended clients in criminal and civil cases, and we wish that our clients received the advantages that prosecutors are giving Trump.

Early warnings

• First, he had ample warning of the investigations because he got letters from the Justice Department saying he was a target of each investigation.
• But target letters generally lack detail and are far from the norm across all criminal cases.

The difference freedom makes

• And after Trump’s brief arraignments in court, judges found he was not a flight risk and released him.
• Most criminal defendants are just arrested and taken to jail, where they may sit for months or even years while they await trial, unless they plead guilty.
• Pretrial detention has also been shown to result in a higher chance of being convicted and receiving longer sentences.

Benefits of time and freedom

• Federal law generally requires “speedy” trials, which are considered a right to protect defendants.
• Trump got a lengthy delay, though it’s not as long as his legal team requested.
• Trump asked that his classified documents trial be held after the November 2024 election, but his trial is scheduled to begin in May 2024.
• Other criminal defendants spend years in jail before pleading guilty or perhaps going to trial.

A treasure-trove of information

• Prosecutors in all three of Trump’s cases have explained, in great detail, the allegations against him.
• Early in the documents case, federal prosecutors publicly disclosed key information about their investigation that could have helped Trump’s legal defense.
• In some cases, they fail to disclose the information.

The other side of the coin

• The Justice Department is prosecuting a former president.
• So, prosecutors’ detailed indictments help inform the public about the breadth and depth of the allegations made against Trump.

What would fairness look like?

• Those looking for fairness in the criminal justice system may wish to see Trump treated like an ordinary criminal defendant.
• But instead, what if everyone else accused of a crime were treated more like Trump?
• In that world, perhaps most importantly, pretrial detention would be used quite sparingly and would not provide leverage to coerce guilty pleas.

• Donald Trump has declared, “I am your retribution,” and it appears to be a guiding theme of his 2024 campaign.
• There’s likely to be an additional indictment from Fulton County, Georgia, prosecutor Fani Willis.
• Is a campaign based on grievance and retribution likely to sway voters?

Political muscle can trounce a prosecution

• Candidates under investigation can leverage their political muscle to run for office – and as a means to avoid prosecution.
• Members of both factions were investigated, and Kenyatta and Ruto were personally charged with organizing the violence among their supporters.
• This flexing of political muscle, a crusade questioning the ICC’s legitimacy and grassroots mobilization led to their eventual victory.

Undermining accountability

• A novel legal strategy for Trump would be to try to apply this also to state jurisdictions like New York and Georgia.
• Additionally, precedent and legal scholarship also suggest that the court would deem at least some of these actions constitutional.
• Beyond ending immediate prosecutions, victorious candidates can use winning office to further erode democratic institutions and the rule of law.
• That potentially undermines the independence and functioning of everything from the State and Justice departments to local law enforcement.

Comebacks follow prosecutions

• Examples from other countries show that prosecution or even jail time does not prevent former leaders from mounting comebacks.
• Former Brazilian President Luiz Inácio Lula da Silva was elected once again in 2022 after his conviction and imprisonment.
• He argued that a judge who was in cahoots with prosecutors, and who became Lula’s predecessor’s justice minister, revealed the politicized nature of Brazil’s justice system.