Prosecutorial discretion can be a complicated thing. It can get really complicated when the suspect is a person by the name of Donald Trump.

In the wake of Trump’s Impeachment trial, state and federal prosecutors are now in the spotlight. They need to weigh all kinds of factors, including the nature and gravity of the offenses, and various policy considerations. Prosecutors decide whether charges should be filed and what particular charges should be included. Once charges are filed, there are myriad discretionary decisions that will be made about how to conduct the case.

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Today, the Senate failed to convict him of the Impeachment charge, but Donald Trump is still suspected of committing a wide range of criminal offenses, from Tax Fraud, to Conspiracy to Interfere with an Election, to Seditious Conspiracy Against the United States, and even aiding and abetting the Murder of a Capitol Hill police officer. So he is still subject to criminal prosecution in the courts, and the crimes themselves are about as serious as serious gets.

Mitigating circumstances? It is hard to imagine that Donald Trump, rich, powerful, Commander-in-Chief, had any mitigating excuses for these crimes that are under investigation.

How about policy considerations. This is where it gets really complicated. At first glance, that is. Prosecutors have the simultaneous duties to enforce the criminal laws and see that justice is done. But they have the inherent discretion to take other factors into account. So, when Donald Trump is the potential criminal defendant, the policy factors they need to take into account have national and international significance. On the one hand, they might worry that trying Donald Trump for serious crimes could cause a violent backlash. They might conclude that prosecuting him would somehow lead to more human suffering than it would prevent.

On the other hand, they must consider what effect it would have if Trump were never held accountable, what would that do to our principle that no one is above the law. How would such impunity affect our democracy, how might it embolden other would-be tyrants? How would it influence the opinions or actions of other nations? If Trump is able to escape justice through his personal status or his connections, could it have possibly devastating effects on our nation’s morale? Our country is already suffering from inequalities based on race, religion, gender, and other social factors.

If Trump evades prosecution and punishment, will he not continue to pose a threat to our democratic political system, and to our national security? Those are concerns which the House Impeachment Managers emphasized zealously.

Can Donald Trump get a fair trial in the criminal courts? That is a policy question that has to be looked at as well. But the Courts provide due process, including procedures for selecting an appropriate venue and a fair jury. He will enjoy all the constitutional rights of any criminal defendant.

Finally, prosecutors can and should consider humanitarian factors. Has the suspect already suffered enough? Is he remorseful, has he demonstrated that he is motivated to atone for his crimes, to repay society for the harm he has done? Is he using his words, actions, or resources to make the world a better, safer place? Did he appear at his Impeachment trial and admit what he had done and show that he has learned from his mistakes? Were there ever questions that deserved a more resounding “No” than these crucial questions in the context of Donald Trump’s behavior?

Prosecutors will have to make their own discretionary choices. We hope that they will exercise their authority wisely. It is not easy being a prosecutor and figuring out what is the right thing to do, in every case. I don’t envy them dealing with the pressure of having to sort out all the positives and negatives of prosecuting Donald Trump. But I think we will see them do the right thing. I think we will see some degree of justice achieved. That is an achievement that all rational Americans should desire and support. And rational thinking is what this country needs right now, more than anything, from all its citizens.


  1. Beth Doshay

    Very well explained, Chuck. I can see how it would be very challenging to sort through all the issues. If I were a prosecutor, however, I’d still come to the same conclusion I have now as a non-prosecutor. Donald Trump needs to be held accountable for his actions.


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