A Bipartisan Approach to Political Prosecutions

Abstract

Abstract The multiple prosecutions of a former President, and the threat of reprisals should he return to the Oval Office, places the Republic on an awful precipice. There is a pervasive perception that prosecutions have been, or soon will be, weaponized against opponents. To restore confidence, an innovative check is essential. We propose the creation of a Prosecutor Jury—a mechanism that balances the requirement that politicians be held accountable for their crimes, against the need to avert weaponized prosecutions that target enemies. Before prosecuting high-level politicians, the Department of Justice should randomly select ten former prosecutors nominated by Democratic Presidents and ten former prosecutors nominated by Republican Presidents. The Department should prosecute only if at least two-thirds of these former prosecutors agree that a prosecution is warranted. Further, the Department should apply this framework to decide whether to prosecute presidential candidates, members of Congress, candidates for Congress, and federal judges. To test our procedure and provide a simulacrum, we applied our framework, and conducted surveys of former US Attorneys to assess whether former President Donald Trump should have been indicted, yielding fascinating results. The results differed substantially across the indictments, with strong bipartisan support for the Florida prosecution. We believe that Prosecutor Juries have the potential to ensure that no high officer is above the law, nor laid low because of partisan machinations.