Regarding George F. Will's June 13 editorial, “You've Been Warned About Alvin Bragg”:
Will usually offers interesting and thought-provoking insights, but in a recent column he completely missed the mark by slamming the election of district attorneys as “terrible.” No matter how angry Will was at Manhattan District Attorney Alvin Bragg, it's unfortunate that he ignored the reasons most U.S. states adopted the election system that began nearly 200 years ago: In 47 states, local residents can elect their district attorneys.
It is true, as Will points out, that prosecutors have enormous discretion and can campaign on the promise of targeting specific outlaws, as Bragg did with his pledge to hold Donald Trump “accountable.” This is a benefit of the system, not a risk, as Will suggests.
When a person or group is widely believed to be above the law, it makes sense for a candidate to promise thorough investigation and prosecution if the evidence warrants it. History bears out public support for targeting suspects. Before he was a gubernatorial and presidential candidate, New York State prosecutor Thomas E. Dewey targeted gangsters Dutch Schultz and Lucky Luciano and their henchmen. Although Eliot Ness was able to convict Al Capone of tax evasion and not the pattern of murder and corruption for which Capone was notorious, the public felt vindicated that the system had taken some action against this gangster.
Just as electing a prosecutor allows citizens to express their anger at the lawlessness of a particular individual, these elections allow voters to choose a broader approach to law enforcement. Depending on the time and location, voters' main concerns may be cracking down on drug sales, decriminalizing drug use, eradicating street crime, or tackling white-collar crime and public corruption. If they are not satisfied with the election results, they can also remove the prosecutor from office in the next election or organize a recall movement, such as one scheduled to take place in Alameda County, California, this fall.
The alternative Will suggests has a number of serious flaws. If mayors or governors appoint district attorneys, they would lose the independence to pursue public corruption cases. Presidentially appointed federal prosecutors are not immune to accusations of political pressure and partisan targeting. Attorney General Merrick Garland and Special Counsel Jack Smith were both appointed, not elected, but they still cannot escape the unfounded accusation that they are politically motivated to “go after Trump.”
Will's attacks on the elected district attorney system in general, and on Bragg in particular, undermine the legitimacy of the system he wants to strengthen. Trump supporters complain that, in their view, the criminal justice system is being “weaponized” to “get” the former president. Will has simply given them another reason to downplay Trump's felony convictions. As long as Trump supporters convince themselves that the real problem is the system, not Trump, America will have a hard time holding district attorneys accountable, no matter how they get their jobs.
Philip Allen Lacovara, Washington
I previously served as Deputy Attorney General of the United States, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.
In a June 13 op-ed, George F. Will complained that the prosecution of Donald Trump was an entirely political attempt by Manhattan District Attorney Alvin Bragg to gain popularity with voters in anticipation of future elections to high office. However, the legal arguments in support of Trump's prosecution remain valid.
It seems to me that the witnesses and evidence presented to the jury at trial clearly supported the prosecution's case that Trump illegally falsified business records to hide payments to a porn star in order to influence the 2016 election because it would look bad on voters if he had had an affair with her. The jury had no problem understanding the case as it was presented.
Will seems to think that a light sentence is appropriate and that Bragg should take a lenient stance in his sentencing recommendation. Attorney General Robert H. Jackson, whom Will cites, made a reasonable argument for prosecutorial discretion in sentencing recommendations, an argument that Bragg will likely heed when sentencing.
Will is free to do what he likes with his column, but I think he should pick political issues that really matter and not attack duly elected officials who are just doing their jobs.
Jared Warmiel, Silver Spring
George F. Will denounced Manhattan District Attorney Alvin Bragg's motives in prosecuting Donald Trump, quoting a 1940 speech by then-Attorney General Robert H. Jackson about the role of federal prosecutors: “Prosecutors have more authority over life, liberty and honor than any other man in America. … At their best, prosecutors are among the most useful members of society; but when they act from malice or other base motives, they are among the worst.”
Given how much Jackson's speech focused on the idea that federal prosecutors should not ignore local attorneys, it is unclear to this reader how these words apply to Bragg's criminal prosecution of Trump. But they are a prescient reminder that public officials who act with malice or other ignoble motives are a threat to society, and that includes Trump.
Jackson continues in the same speech: “Reputation, it has been said, is 'the shadow cast by everyday life.'”
There is an irrefutable irony in George F. Will's op-ed on Alvin Bragg. Will expressed concern that the prosecutor had the audacity to prosecute former President Donald Trump for what Will saw as seemingly minor attempts by Trump to mislead voters and run his business in a fraudulent manner. But something was missing. Where was Will's indignation over delays imposed by judges in cases pending in other states in the even more significant cases against Trump? Where was his concern that justice delayed is justice denied?
Jeff Olczyk, Bradenton, Florida
George F. Will was right in his opinion that Alvin Bragg mishandled the charges against Donald Trump. But Will misses a key part of why Trump was found guilty. In my view, the former president was found guilty because he dictated the legal strategy to his defense team. Trump did not want his defense team to tell the jury and the public that he had slept with adult film actress Stormy Daniels. There was nothing illegal about the tryst, but Trump would clearly have been embarrassed by this testimony.
If Trump had not undermined his legal team, he might well have been acquitted, or at least have received a mixed verdict.
The answer to the question posed in a June 13 editorial, “Is there a legislative solution to the expansion of judicial power?” is simple. The Washington Post identified a real problem: a single district court judge has the power to block federal action across the entire country. And because they have that power, and because judges themselves have different and widely known preferences and judicial philosophies, plaintiffs can take their complaints to the judge most likely to give them the result they want.
The solution is for Congress to ban so-called national injunctions unless issued by a panel of three federal judges. The use of these panels was legal until 1976, but Congress has since eliminated the requirement in most circumstances.
The rules for such a committee should also ensure that the perspectives of the judges hearing such important issues are diverse. In addition to the district court judge assigned to the case, the committee would include two randomly selected appeals court judges, one from the circuit in which the case was filed and one from the other circuit. Ideally, the other judge would be chosen from the U.S. Court of Appeals for the Washington, D.C. Circuit, which has extensive experience with administrative law issues, but this option may be politically impossible.
This amendment does not solve the original problem of plaintiffs seeking friendly local court forums, but it does significantly reduce the ability of a single local judge to decide the law for the entire country.
The Trump and Biden administrations agree on little except a strong dislike of state injunctions. With the presidential election still unclear, this uncertainty gives Congress an opportunity to do the right thing now with regard to state injunctions without worrying about the political ramifications of the vote.
Alan B. Morrison, Washington
The author is Associate Dean at the George Washington University Law School, where he teaches civil procedure and constitutional law.
