As someone who’s been covering investigations into leading political figures for the past decade, I’ve thought a lot about the politicization of the rule of law.
On the one hand, politicians shouldn’t be above the law — if they commit crimes, and there’s evidence to show that, they should be charged.
But on the other hand, criminal law shouldn’t be weaponized for political reasons against the opposing party’s enemies. When that happens in other countries, we generally view it as a sign of dysfunction or corruption.
So how do we know whether that’s happening?
Often, it’s harder than it may seem. Avid political partisans are very good at talking themselves into justifications for why their enemies are obviously criminals who deserve to be locked up, while their allies are clearly being unfairly persecuted with weak cases.
But I’ve come to think that prosecutions and investigations that can fairly be characterized as politicized tend to share several of the following traits:
- They’re fishing expeditions — starting focused on one topic, and sprawling very far afield, often lasting years.
- They focus on obscure or technical matters.
- They feature novel legal theories.
- They resemble few previous prosecutions.
- Investigators are internally divided on the case’s strength.
- They involve scrutiny and an investment of resources that would not have been put on anyone else.
- Those in charge of them have obvious political motives.
The more politicized an investigation is, the more the end purpose seems to be to “get” a particular political figure, with the exact crimes at issue being a matter of secondary importance.
Many of these traits were evident in the investigations Trump tried to order into his political opponents during his presidency. Many were also present in investigations into Bill Clinton in the 1990s, which started as the “Whitewater” investigation and sprawled outward.
And they also all fit what’s been reported about…
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