Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.
In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor. The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not. Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution. He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution. Continue reading