The Criminalization of Politics


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.

William Cooper
William Cooper

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. 

Trump backers give $5.6M for Senate audit

Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)

Groups linked to Donald Trump and conspiracy theories about the 2020 election have put more than $5.6 million into the audit run by a man who himself has touted some of the same rhetoric. 

But it’s unlikely that Arizonans ever will find out who is really behind all that cash. 

Cyber Ninjas CEO Doug Logan disclosed he has taken in more than $5.7 million. That’s on top of the $150,000 contract he has with the Senate to conduct the review of the results of the general election in Maricopa County and see if Joe Biden really outpolled Donald Trump. 

And the lion’s share of that, about $3.25 million, came from The America Project, set up by millionaire Patrick Byrne, the former CEO of “overstock.com.” Byrne already has said he believes what happened was “a fraudulent election.” 

As to who is behind all that money, there’s no legal way to find out. 

The America Project is set up under the Internal Revenue Code as a 501(c)(4) “social welfare organization.” And that precludes it from having to disclose the actual donors. 

Rod Thompson, who handles media for Logan and Cyber Ninjas, said there would be no further details released. 

America’s Future put in an additional $976,000. 

The chairman of the board is Michael Flynn who served as Trump’s national security adviser who was pardoned by Trump after twice pleading guilty to lying to the FBI about his conversations with a Russian diplomat. And its president is Ed Martin who, along with Phyllis Schlafly and Brett Decker, wrote “The Conservative Case for Trump.” 

Its website describes the organization as “the nation’s leader in the fight to preserve American values and ideals, protect the nation’s constitutional republic, promote strong American families, revitalize the role of faith in our society, and advance the virtues of free market capitalism.” 

There also was $605,000 from Voices and Votes, headed by Christina Bobb who used her position as a host on the Trump-oriented One America News Network to both say she was covering the audit as well as raising money for it. 

Other funds include $550,000 from Defending the Republic, a group headed by Trump attorney Sidney Powell, and $280,000 from Election Integrity Fund for the American Republic, a group set up specifically to generate cash for the Arizona audit that is run by Michigan attorney Matt DePerno, who was accused of spreading misinformation in his state about election fraud. 

All of these groups also are set up under federal tax law to allow them to shield the identity of the true donors. 

Thompson said he cannot say how that $5.7 million – plus the $150,000 in taxpayer dollars – compares with the actual cost, as the audit is not yet over. There apparently is nothing that precludes the dollars from being funneled personally to Logan or to pro-Trump causes. 

Senate President Karen Fann said Logan’s list fulfills a promise he made to disclose the source of outside funds which he and others have been soliciting. 

But the Prescott Republican said she is not disturbed by the failure of any of the organizations to break down the individual contributors. And she told Capitol Media Services she will not ask for that. 

“If I ask them for that, then should I ask for names of those to contribute to anti-abortion organizations?” Fann asked. She said that’s why the U.S. Supreme Court has ruled that certain contributions should be protected under the First Amendment. 

That relates to a 1958 ruling where Alabama sought to block the NAACP from operating in that state because it would not provide various records, including membership lists. The justices ruled that the demand for the list was unconstitutional. 

Fann said that makes sense. 

“Caucasians were being threatened by the Ku Klux Klan when they stood up for African Americans with political contributions,” she said. 

Fann has defended having virtually the entire cost of the audit, which she has declared to be an official government function, paid by outsiders, including those who she does not know. 

But that decision also comes on the heels of lawmakers voting to make it a crime for any outside group to provide money to state or local entities to help run elections or conduct voter registration efforts. 

That followed the disclosure that nine Arizona counties got more than $6 million last year from the Center for Tech and Civic Life. Jennifer Marson, executive director of the Arizona Association of Counties, said that helped defray some of the costs of running an election during the Covid pandemic. 

Republicans in the legislature, however, noted that the $400 million CTCL gave out came from Facebook billionaire Mark Zuckerberg and his wife, Priscilla Chan. And Aimee Yentes, a lobbyist for the Arizona Free Enterprise Club, which tends to support GOP causes, said Zuckerberg is a known liberal, accusing him of curating content, filtering conservative messages and banning individuals with opposing political opinions. 

Fann said the audit is costing far more than anticipated, blaming at least some of that on what she said has been the lack of cooperation by Maricopa County. That included a series of legal battles over what, if anything, the Senate is entitled to have, battles that so far have largely gone the Senate’s way. 

She also said there were unanticipated costs, like having to rent space in the Veterans Memorial Coliseum and obtain 24-hour security. Fann said that would not have been necessary had the county allowed Cyber Ninjas to conduct its review at county election offices. 

And a new legal battle may be in the works, with Fann having issued new subpoenas not only to the county but to Dominion Voting Systems, which provides the leased election equipment to the county. Among the things Fann wants for Cyber Ninjas are passwords, security keys and other information necessary to access the programming in the equipment.