By William Cooper
Guest Columnist
The recent testimony before Congress of Cassidy Hutchinson – an assistant to President Donald Trump’s chief of staff, Mark Meadows – added a new gloss to what was already known: that Trump’s effort to reverse the 2020 presidential election was the worst behavior of any president in American history.
After the House impeached him in early 2021, the Senate should have convicted him and disqualified him from office again. Whether Trump should be prosecuted by the Department of Justice, however, is a different question.
Many of the same people who criticized former Attorney General William Barr for showing leniency toward Trump’s allies Roger Stone and Michael Flynn in their criminal matters are calling for Attorney General Merrick Garland to prosecute Trump. Hutchinson’s testimony that Trump knew his supporters were armed and dangerous on Jan. 6, 2021, when he urged them to “fight like hell,” has made those calls grow louder.
This raises perhaps the most important question in criminal justice: What criteria governs prosecutors’ decision-making regarding whether to bring a case?
The discomforting answer is that prosecutorial discretion is a matter of subjective human judgment. And human judgment in this context is just as vulnerable to bias and fallibility as in any other.
The most concerning bias impacting prosecutors is confirmation bias – the strong tendency in human thinking to interpret new facts as consistent with pre-existing beliefs. According to cognitive psychologist Daniel Kahneman, “confirmation bias comes from when you have an interpretation, and you adopt it, and then, top down, you force everything to fit that interpretation.”
Prosecutors, of course, are a heterogeneous group and bias impacts each prosecutor differently. Most prosecutors are well-meaning and loyal public servants. But, as humans, they often interpret new facts unearthed during investigations as consistent with their preconceived notions and prejudices.
In the arena of criminal justice – where life and liberty are at stake – confirmation bias can have dramatic human consequences, especially when the target of an investigation is a controversial public figure. Bias in prosecutorial decision-making is fundamentally at odds with the first principle of criminal justice – that the law applies equally to all people.
Prosecutorial discretion is, indeed, an immense power. Unlike other acts in our democracy that require an election among the people or a majority vote of elected representatives, deciding whether to prosecute boils down to individual human judgment, largely unobserved and unchecked. As former attorney general and Supreme Court Justice Robert Jackson explained: “The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous.”
So how, then, should Garland and the Department of Justice consider whether to prosecute Trump? With profound caution. This necessitates a scrupulous analysis of whether admissible evidence exists meeting the specific elements of a crime – not simply whether Trump’s behavior was egregious. It also requires a decent respect for the inherent biases in human judgment. Given the profound consequences of being subject to prosecution, every potential defendant deserves no less.
Even Donald Trump.
William Cooper is an attorney and author.