Do Unto Others—Or Not

Dr. Malcolm Cross

Last week’s news was dominated by two stories—the unsealing of the Trump indictment, and the expulsion of two lawmakers from Tennessee’s House of Representatives.  These are just some of the types of political actions which can set precedents which might harm those who initiated them.

Consider, for example, the indictment Manhattan District Attorney Alvin Bragg, a progressive Democrat, secured against former President Donald Trump.  It has elicited widespread scorn from conservative legal analysts and expressions of doubt and disappointment from liberals as well.  

Bragg is charging Trump with falsifying business records to cover up a hush money payment to prevent a former porn star from discussing a 2006 affair she says she had with Trump, and which he denies.  Under New York state law, Trump’s alleged actions would be considered a misdemeanor for which the statute of limitations now forbids prosecution.  But Bragg claims Trump’s actions may constitute a felony for which he can still be prosecuted since they were taken to facilitate another crime.  Exactly what that crime might be is not clear from the indictment itself—Tax evasion?  Misuse of campaign funds?  Bragg is not yet saying.

At any rate, analysts are questioning the strength of the case, noting that Bragg’s legal theory is relatively new and not previously used successfully.  A few years ago, federal prosecutors brought a similar case against former senator and vice presidential nominee John Edwards, claiming he used campaign funds to buy the silence of a woman with whom he had had an extramarital affair and a child born out of wedlock while he was seeking the 2008 Democratic presidential nomination.  A jury acquitted Edwards on one charge and failed to decide on five others.  The federal government thereupon dropped the case altogether.  It’s telling that neither the Federal Elections Commission nor the Biden Justice Department  sought to prosecute Trump.

 But in ignoring the federal precedent set by the collapse of the case against Edwards, Bragg himself could be setting a precedent which inspires some Republican prosecutors to seek indictments against Democratic officeholders.  After all, even if Bragg’s case against Trump ultimately collapses, as Republicans hope and Democrats fear, Trump will be out much time and money before the case is resolved.  The pain inflicted on Trump could well lead one of his acolytes to seek revenge of a sort by pursuing equally specious charges against a Democrat.  Bragg is not the only prosecutor who can play this game.

Also precedent-setting is the decision of the Tennessee House of Representatives to expel two Black members for participating in a demonstration on the chamber floor supporting tougher gun control measures following the latest shootings which left 3 children and 3 teachers dead at a Tennessee Christian school.  None of the news reports accuses the Republican state representatives of breaking any rules in the expulsion of their Democratic colleagues, yet the wisdom of doing so is nonetheless questionable.  According to the Tennessee legislature’s website, 27 of its 33 State Senators and 73 of its 99 State Representatives are Republicans, making the chances of successful retaliation by the Democrats remote at best—at this time.  Yet someday the Tennessee Democrats may have not only the numbers but the desire to seek revenge after all.  And of course the actions of the Tennessee Republicans could act as precedents for legislative majorities in other states to take similar actions against minorities.

Other examples of actions which set dangerous precedents can also be seen.  Republican Senate Leader Mitch McConnel’s successful efforts to prevent the Senate from considering President Obama’s Supreme Court nominee, Merrick Garland, could some day be imitated by Democratic senators seeking to block a Republican appointee.  On the other hand, the Republican abolition of the filibuster for Supreme Court appointees not only secured the confirmation of President Trump’s 3 Supreme Court nominees, but the confirmation of Biden’s nominee as well.  And the Republicans removal of Ilhan Omar and other progressive Democrats from congressional committees echoes the Democrats’ removal of Representative Marjorie Taylor Greene from committees in 2021 as well as then-Speaker Nancy Pelosi’s rejection of several Republican appointees to the January 6 committee.

Whether any of these instances—indictment, expulsions, maneuverings to confirm or block Supreme Court appointments, or removals of members of Congress from legislative committees—can be defended or justified on the merits of a particular case can be debatable.  But the important point here is that regardless of the facts, laws, and regulations peculiar to each case, each case sets a precedent which can be used for better or worse at a future time.  Those who would take such actions should be careful about what they choose to do unto others.  Someday it could be done unto themselves as well.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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