Refusing to indict Trump in Arizona was a grave mistake

The phrase “no one is above the law” has a long and storied history. But in the age of Trump it is coming to seem like nothing more than a comforting legal fiction. 

Over the last several years, the former president has given something of a master class in showing how to poke holes in the law. Donald Trump’s record of avoiding responsibility is not perfect, but this past week brought more bad news in the quest to show that he is not above the law. 

As the New York Times reported, “A state grand jury in Arizona that charged 18 people this spring in a scheme that sought to overturn Donald J. Trump’s 2020 election loss wanted to indict him, too.… But prosecutors … recommended that Mr. Trump should not be charged, citing a Justice Department policy that discourages bringing state and federal cases against the same defendant that are largely based on similar facts.”

The Arizona prosecutor’s decision is a serious legal and political mistake.

The Justice Department’s policy specifically establishes “guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.” It has absolutely nothing to do with what an Arizona prosecutor can or should do.

As the Times noted, “The grand jurors investigating allegations of interference in that state’s election seriously considered bringing charges against Mr. Trump. Some of the grand jurors even appeared to be upset when a state prosecutor suggested they should not.” 

They were right to be upset. The decision to let Trump skate by following the Justice Department policy was purely discretionary, and it was a bad one. 

It further fuels the perception that Trump is a legal Houdini escaping another jam. 

Responding to the chagrin of the grand jurors about the decision not to indict Trump, the prosecutor said, “I know that may be disappointing to some of you.” But it was more than that. It is a disappointment to anyone tired of seeing Trump get off scot-free.

Ultimately, the grand jury indicted 18 people on forgery, fraud and conspiracy charges, including the 11 Republicans who submitted a document falsely claiming Trump had won Arizona, five lawyers connected to the former president, and two former Trump aides. But not Trump.

The decision was odd in another respect. The former president has escaped indictment in the false electors scheme in several other states, including Michigan, Nevada and Wisconsin. 

Georgia is the only state where Trump has been indicted for participating in that scheme. In other places, such as Arizona, he has only been identified as an unindicted co-conspirator.

The fake electors' scheme is, however, also part of special counsel Jack Smith’s indictment of the former president, the disposition of which is pending in Washington before Federal District Judge Tanya Chutkan.

In the ordinary case, “if a single act violates the law of two states, the law treats the act as … [two distinct] offense(s)” and nothing prevents prosecution from proceeding in both states. 

The same is true for offenses that implicate both state and federal law. This is called the “dual sovereignty doctrine.” 

As the U.S. Supreme Court explained in 1985, quoting the original language and spelling of the Fifth Amendment, “The dual sovereignty doctrine provides that when a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences’ for double jeopardy purposes.”

In applying the doctrine, the justices continued, “The crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the prosecuting entities' powers to undertake criminal prosecutions derive from separate and independent sources.” 

The court’s ruling concluded, “It has been uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute derives from its inherent sovereignty … and not from the Federal Government. Given the distinct sources of their powers to try a defendant, the States are no less sovereign with respect to each other than they are with respect to the Federal Government.”

So here again, Trump is escaping legal responsibility and getting preferential treatment. He hasn’t done this alone. He has been aided and abetted by a shifting cast of characters, now including an Arizona prosecutor, as well as by unusually good luck.

We’ve seen it all before: Prosecutors and judges exercising their discretion in ways that help the former president make a mockery of the idea that no one is above the law. 

For example, former special counsel Robert Mueller had Trump dead to rights on obstruction of justice, but declined to seek an indictment based on a years-old opinion by the DOJ’s Office of Legal Counsel that recommends against indicting a sitting president. 

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When he appeared before Congress, Mueller said he had “never reached a decision on whether Trump could or should be charged with obstruction because of the OLC guidance…. We did not reach a determination as to whether the president committed a crime." As Rep. Ted Lieu, D-Calif., noted at the time, "a reasonable person looking at these facts could conclude that all three elements of the crime of obstruction of justice have been met.”

That did not stop then-Attorney General William Barr from telling the American public that “after carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense. “

Trump benefited again when Barr offered a misreading of the Mueller report to whitewash allegations “that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”  

Other examples of Trump escaping from legal jeopardy for his misdeeds abound. Think two impeachments and no convictions. 

One also could cite the Supreme Court’s decision that states could not bar him from the ballot because of his role in the Jan. 6 insurrection or, more recently, the court’s mind-boggling decision that the president has immunity from criminal prosecution for acts undertaken in his official capacity. Then there is Judge Alieen Cannon’s unprecedented dismissal of the classified documents case against Trump on the grounds that the appointment of the special counsel was somehow unconstitutional. 

It seems that the more off the wall Trump’s legal arguments have been, the more his MAGA-friendly judges buy them.

The former president has also benefited from the good fortune of being indicted in Georgia by a prosecutor who had an affair with a subordinate, creating a legal and moral morass that has yet to be untangled. 

This is not to say that the civil judgments that have been entered against him and his criminal convictions do not matter. They do. 

But Trump’s win-loss record in slowing down the wheels of justice and evading legal responsibility is both impressive and deeply corrosive of Americans’ faith in the rule of law. That is why the Arizona prosecutor’s grave misjudgment matters so much.  

It means that what unfolds in Judge Chutkan’s courtroom, when she picks up the pieces in the Jan. 6 election interference case, and when Trump is finally sentenced next month in the New York hush-money case, is more important than ever. Those judgments can help reassure Americans that when it comes to Donald Trump, the idea that no one is above the law is more than a comforting fiction.