The sustained government attacks against Donald Trump have implications that extend far beyond his presidential campaign. They present a serious constitutional crisis that has the potential to destroy America.

On August 1, the Wall Street Journal revealed that Donald Trump’s legal bills are consuming his campaign coffers. The article contained a graph showing the rising legal expenses relative to non-legal expenses for Trump’s “Save America” Political Action Committee. These numbers are troubling.

By the end of 2022, Trump’s legal expenses had consumed half of the PAC’s campaign spending. By the first quarter 2023, they had consumed nearly 90% of the spending and, by the second quarter 2023, they had exceeded 90% of total spending.

This raises serious questions about election interference. We tend to think of election interference as a fraudulent or nefarious activity directly connected to the election itself, whether by manipulating voting machines, ballot harvesting, paying for votes, registering votes from incompetent or non-existent people, voter intimidation, vote-count manipulation, etc. But in the United States, we overlook the most obvious form of election interference that’s common throughout the world and throughout history: political prosecution.

Imagine you are the president of the United States, and you want to remain in power (or keep your party in power). Now imagine that you control the Department of Justice, the FBI, and a host of other intelligence agencies. What would stop you from bringing multiple criminal cases against your main political rival? And if you are being investigated by Congress for bribery and other crimes, what would stop you from bringing criminal indictments against those in Congress who pose a threat?

Political prosecution is the nuclear weapon of election interference. In the hands of a corrupt politician, anything is possible. In the United States, the only barrier we have had to the use of this powerful weapon is tradition. But now, that tradition of restraint is gone.

Image: Donald Trump meme.

After over 200 years of abstaining from political prosecution in presidential elections, how did we suddenly come to normalize the practice? The answer is simple: Hatred for Trump. There is likely no other figure in American history (and certainly nobody else in living memory) who has been demonized to such an extent. When people are conditioned to believe someone is evil, a status well beyond bad, then ends-oriented justice becomes acceptable. It becomes acceptable to break with norms. If Hitler is among us, then we must do anything and everything to stop him.

The Democrat party dipped its toes in the water in New York City when, on April 4, 2023, Alvin Bragg announced a 34-court felony indictment against Trump for allegedly falsifying business records. The alleged crimes were a compilation of convoluted and rehashed federal campaign finance accusations related to payment for a non-disclosure agreement with Stormy Daniels. Most legal scholars seemed to agree that the claims lacked credibility, but credibility was not the point. The point was instead to erode the norm against blatant political prosecution at the highest level. Can we actually indict a former President of the United States? Sure—why not?

On June 8, with precedent now on its side, the federal government jumped into the water with its own indictment, this time for document crimes. Many challenged the case for obvious reasons: the president’s plenary power over document classification; the applicability of the Presidential Records Act; the fact that Trump is the first president to be charged for something all other presidents and lesser politicians have done; Biden’s huge unsecured stash of records from his time in Congress despite never obtaining authorization to remove the records; and Hillary Clinton’s pass for destroying records after having received a subpoena.

However, no one gave serious attention to the most important questions: Can the sitting president’s Department of Justice prosecute a former president who is a leading political rival, and if so, under what parameters? Without a greater focus on these foundational questions, political prosecutions are presumed to be legal and appropriate.

With the presumption of validity, more political prosecutions are inevitable. Thus, it was no surprise last week when the Department of Justice brought its anticipated “January 6” indictment. This indictment accuses the former President of crimes related to his challenge of Joe Biden’s 2020 election victory. In short, the indictment accuses Trump of challenging the election result despite allegedly knowing that his challenge was unfounded.

Apart from it being a political prosecution, this latest indictment is especially troubling because it shows the federal government’s increased willingness to prosecute Trump (and others) for thought crimes—for being disagreeable. For perspective, recall that the governmental apparatus sabotaged Trump’s presidency for four years straight.

Then, on the eve of an election that many believed was Trump’s for the taking, government agencies throughout the country significantly liberalized their voting procedures in the name of COVID, often suspending or violating their own laws.

Many states effectively removed important safeguards for voter integrity. Recall that Trump was the apparent winner at the closing of the polls but that Biden became the winner as counting continued behind closed doors into the night. Against this background, it is only natural to question the 2020 election results.    

The far more troubling aspect of this latest indictment is the free speech implication. If we can no longer speak out about problematic elections (whether founded or not), then we have effectively written the First Amendment out of the Constitution. If this accusation is permitted to stand, then we become a nation in which we are all mere subjects of the government.

With these indictments, we have finally “crossed the Rubicon.” It is notable that, when Julius Caesar cast the die and made that fateful decision to march his legion on Rome, it was because the Senate refused to forego prosecuting him for crimes Caesar purportedly committed during the Gallic Wars (i.e., exceeding Senate authorization). Arguably, this unrestrained political prosecution is what plunged Rome into civil war and ultimately ended the republic.

The critical question for Americans today is: What do we do about the problem of unrestrained political prosecution? How do we ensure political prosecution does not cause the fall of this republic? How is it that, despite having such a deep understanding of the Roman Republic, our founders did not include a check against this power in the Constitution? Why did they leave such an obviously destructive force to the whims of decorum? What exactly is the appropriate check against this abuse of power?

The obvious answer is that our Founders left it to us to figure out. So, to avoid what could be the greatest of all Constitutional crises, figure it out we must.