Some prosecutors and judges might see the Trump case as a new path forward
Trump prosecution has a 'heavy burden': Brett Tolman
Former federal prosecutor Brett Tolman discusses jury instructions in NY v. Trump on 'America Reports.'
If you don’t care about the criminal justice system, just wait until the criminal justice system cares about you or someone you love. An estimated 70 million to 100 million Americans – roughly 1 in 3 – have a criminal record and many, like former President Donald Trump, are at the mercy of acrimonious justice.
Any law officer or prosecutor can target an individual, search the books containing hundreds of thousands of crimes, and pin any handful of offenses on them. Tee that up with an unscrupulous judge, and any one of us could be convicted of a crime.
Plenty of prosecutors are as bad as Manhattan District Attorney Alvin Bragg, but I blame New York Supreme Court Judge Juan Merchan, who didn’t just put his thumb on the scale of justice, he sat on it for the whole world to see.
Former President Trump walks out to speak at a news conference from the lobby of Trump Tower the day after being found guilty on 34 felony counts at Manhattan Criminal Court, in New York, on Friday, May 31, 2024. (Jabin Botsford/The Washington Post via Getty Images)
It was 180 degrees from our constitutional and due process protections, the presumption of innocence, and the standard practice of almost all judges who afford defendants wide latitude to attack the prosecution, expose abuse and corruption, and fully present exonerating evidence.
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In my 25-plus year career as an attorney in the criminal justice system, I’ve witnessed our broken criminal justice system get it wrong. Indeed, even when all parties check their biases and fulfill their roles in good faith as prosecutor, judge and jury, a verdict of guilty does not always mean the convicted is a criminal.
Post-conviction exonerations tell us greater than 4-10% of convictions were wrongful. And if a defendant chooses to exercise his constitutional right to a trial by jury, the sentences imposed can be exponentially higher due to prosecutorial discretion and vindictive judges.
Simply put, when prosecutors abuse their power and judges don’t serve as a check on such abuse, our criminal justice system is set up to get it wrong in every such case.
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Last week’s guilty verdict against a U.S. president was unprecedented, but it was the unabashed biases and maneuvers in the courtroom that rocked our legal community on both sides of the aisle.
Even CNN’s senior legal analyst Elie Honig wrote in New York magazine that the case was an "ill-conceived, unjustified mess." He says prosecutors "contorted the law in an unprecedented manner in their quest to snare their prey" in a "Frankenstein case cobbled together with ill-fitting parts… that just might ultimately turn on its creator."
Therein lies the ominous net that’s been cast on all Americans.
Some prosecutors and judges might see this as a new path forward. Sitting judges and prosecutors may feel more emboldened. Politics is quickly taking over any fidelity to the Constitution or the rule of law. If you’re in opposition to the party in power, the criminal justice system can and likely will be weaponized against you.
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The hallmark of fairness in the administration of justice is consistency, and yet this principle can easily be lost when there are too many federal, state and local laws to keep track of or even understand. It’s estimated the average American commits three felonies a day. Show me almost any individual, and I can find a crime and prosecute them for it.
Overcriminalization and weaponization should offend both sides of the aisle, and until those who abuse our criminal justice system find themselves in the crosshairs with convicted felonies and jail time, it won’t stop.
The peak of overcriminalization is worsened by this heightened political environment we’re living in. Politics has traditionally been confined to the halls of Congress, but President Trump’s illegitimate conviction illustrates that it may become just as commonplace in the halls of justice.
The greatest nation in the world is only number one in a single category: the United States incarcerates more people per capita than any other country. We must stop weaponizing the law, hold our legal system more accountable, and demand transparency at every step of the criminal justice process.
Put your politics aside. Whether you like or dislike Donald Trump, is there any American that can honestly say this evolution of our criminal justice system is a good thing? We must stop placating judicial abuse and corruption or any one of us could be met with brute political and legal warfare by those in power.
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Brett Tolman is executive director for Right on Crime and former United States attorney for the District of Utah. Tolman was a leading figure in the drafting and passage of the First Step Act, one of the most sweeping reforms of the federal criminal justice system in decades.
