Justice Without Jail

I’ve been writing about the possible criminal liability of the Trump administration: Trump’s criminal liability for obstruction of justice, and his and his advisors’ potential liability for various other federal and state crimes. These questions are relevant for impeachment, even though “high crimes and misdemeanors” are not limited to statutory crimes. And these questions are especially relevant if Trump hands out pardons to undermine the investigation, because the president cannot pardon state crimes, and if Trump fires Mueller, because state prosecutors could take over the investigation and prosecution on the state level.

In response to my posts, critics have suggested that I want to “jail Trump.” The implication is that I am a “Lock Him Up!” rejoinder to the Trumpian “Lock Her Up” chant. I write here to clarify that I am calling for criminal investigation, prosecution, and potentially conviction, but not jail time (at least not at this stage for what we know now).

First, I want to reiterate that I am skeptical that a federal prosecutor could indict a sitting president. There isn’t a clear answer on this question, but the Supreme Court in dicta in Nixon v. Fitzgerald suggested a temporary immunity, quoting Justice Joseph Story and his seminal Commentaries: “The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” But Story is implicitly acknowledging a president could be arrested after leaving office. The Supreme Court in this passage also left open that possibility, suggesting that the president must not be “above the law.”

I also want to clarify that one can prosecute and convict without sentencing someone to jail. We do this all the time: Judges issue fines and sentence people to probation, rather than jail time. They sentence defendants to “time served,” so that if they were detained for months or years awaiting trial, that detention counts as their sentence retroactively. There is nothing unusual in our system about convictions and guilty pleas without jail. In fact, I wish prison sentences were even less common.

In fact, we have seen a parallel set of circumstances in the Nixon administration. Nixon’s vice president Spiro Agnew was caught in a bribery scheme red-handed. He pleaded “no contest,” resigned, and served no jail time. Nixon resigned, was pardoned by the new President Gerald Ford, and also served no jail time. In these two cases, resignation was sufficient to serve justice.

There are many reasons to prosecute Trump and his allies without necessarily seeking imprisonment of Trump. Prosecutions serve to investigate and seek the truth more fully with subpoenas and testimony. Prosecutions can force resignations and guilty pleas that produce more witness cooperation and more information. Perhaps most importantly, prosecutions can lead to broader truth and reconciliation. South Africa and other nations emerged from long histories of violence and abuse by offering some amnesty in return for admission of guilt and apology. I’m not suggesting that we need to adopt such a model in America, but we can learn the wisdom from such a balance of justice without jail.  In order to keep our republic unified, justice must be done, but without being excessively vengeful and punitive. The resolution of Russia-gate (or L’Affaire Russe?) must be felt to be legitimate — maybe not by everyone, but by a sufficient number of reasonable people on both sides. We need resolution and balance. If Trump committed high crimes and serious felonies like obstruction, he needs to be removed from office. But is it necessary to put him behind bars? And would seeking prison for an ex-President overstep the balance and make mutual resolution more difficult? I’d probably support a presidential pardon for Trump if he were to resign or comply with removal. In retrospect, Ford’s pardon of Nixon was probably the right thing to do, even if it left many unsatisfied. Maybe a criminal prosecution on the federal or state level after Trump is out of office could be explicitly limited to maximal criminal fines, and prosecutors could stipulate no prison time.

The threat of prison may be necessary for Flynn, Manafort, and others to cooperate fully to hold the most powerful officials accountable. But at this stage, with respect to Trump, I don’t think it is helpful or necessary to seek to “Lock him up.”







Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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