American politics have become criminalized. A steady drum beat of words and deeds — from “lock her up” chants, to prosecutions of President Trump’s associates, to Trump pushing for Joe Biden’s indictment — has eroded the bright line between politics and the criminal law.
This is deeply troubling for several reasons.
First, criminalizing politics conflicts with the bedrock principle that the rule of law applies equally to all people. Entangling the passions of politics with the criminal law leads to treating people differently based on their political affiliation — instead of on their guilt or innocence. This is antithetical to even-handed justice.
The examples of this criminalization are endless. Republicans want to lock up Hillary Clinton for her email practices and prosecute Obama administration officials for investigating the Trump campaign. Democrats, meanwhile, want Michael Flynn in prison and Trump indicted in New York the day he leaves office. And so on.
In American politics the messenger matters more than the message, the actor matters more than the act. This is diametrically opposed to the basic premise of the rule of law — that all people must be treated equally and their specific alleged misdeeds are what matter.
Second, criminalizing politics accelerates a disturbing trend toward ever more political polarization. It ramps up the stakes from treating opponents like political rivals to treating them like personal enemies.
True, fierce domestic politics is nothing new. It is woven into the fabric of our democratic system. But ultimately we are one nation in a dangerous world. Our political disputes should not consume a disproportionate amount of our national bandwidth. Nor should they undercut our ability to respond to the many foreign threats we face. If looked at from a global perspective, Americans’ interests overlap far more than they diverge.
Put simply, Americans should focus our political energy on winning elections and setting policy, not sending officials we don’t like to jail.
Finally, criminalizing politics deters talented people from entering the political arena. The United States government already has a personnel problem. We shouldn’t further dissuade quality people from entering government because imperfections and ambiguities in their past might be shoehorned into politically motivated criminal accusations. The downside for winning office should be losing the next election, not getting indicted.
These concerns about the criminalization of politics must be looked at in context. It is true that entering the government should neither absolve someone from past crimes nor serve as a license to commit new ones. And one aspect of even-handed justice is to prosecute not just the weak and anonymous but also the powerful and well known.
Striking the right balance is hard. But there should be a strong presumption in favor of leaving politics – and its inherent passions and prejudices – at the courthouse door. Criminalizing politics doesn’t just poison our government and undermine our justice system. It imperils our nation as a whole.
William Cooper is a California-based attorney.