By: Victoria Toensing and John Yoo

Rather than revenge, the Justice Department should defend the constitutional rights of candidate Trump and his voters.

In his second inaugural address, President Donald Trump declared that the “weaponization of our Justice Department and our government will end” and that he would “re-balance” the scales of justice. He now faces an important decision: whether to investigate the founders of the lawfare campaigns against him — beginning with New York Attorney General Letitia James and New York City District Attorney Alvin Bragg. He would have at his disposal the same legal theory that the Biden Justice Department constructed just for him: interfering with the presidential election deprived Americans of their constitutional rights to run for office and vote.

Special Counsel Jack Smith announced this unprecedented theory by charging Trump with depriving all Americans of their voting rights by challenging the outcome of the 2020 election.

The demise of independent counsels, which had a very low threshold to trigger appointment, illustrates how Democrats respond when feeling the sting of onerous investigations. Democrats loved the 1978 Independent Counsel Act, which was used five times against the Reagan administration and twice against George H.W. Bush. It was “good government” until it wasn’t. When the Clinton administration got hit with seven independent counsels, enough was enough. Democrats cheered its expiration in 1999, having discovered it was too costly.

Turning lawfare on its creators is not about revenge. It will serve as a deterrent to prevent future abuse and will restore public confidence that justice is even-handed. Individuals who have carried out lawfare have not only destroyed faith in our legal system but also may have violated the law. A federal statute, 18 U.S.C. 241, prohibits conspiring to “injure, oppress, threaten, or intimidate” a person exercising constitutional rights or privileges. Clearly President Donald J. Trump had constitutional rights and privileges to run for office and govern, not to be imprisoned for contrived crimes, and not to be deprived of property based on abuse of federal and state justice systems. According to the Biden administration’s own theory, preventing a candidate from running and assuming office also deprives supporters of their rights to vote.

New York Officials Try to Knock Trump Off Ballot

Democratic efforts to attack Trump using the power of the state, and thereby interfere with constitutional rights to vote, begins in New York. New York State Attorney General James campaigned on getting Trump. In September 2022, James filed civil fraud charges against Trump for misrepresentation of his assets. The Democrat-donor judge agreed, even though there was no victim. A Deutsche Bank executive testified he had not relied on the Trump financials and the bank had done its own due diligence. Nonetheless, the New York state court awarded almost a half-billion dollars in damages against Trump. James visited the White House a few months before the filing and at least twice again in 2023, months before the October 2023 trial.

New York Democrats decided to go even further to try to knock Trump out of the race by pursuing frivolous criminal charges. In his final year as New York City District Attorney, Cy Vance Jr. recruited former federal prosecutor Mark Pomerantz to take leave from Biden-megadonor law firm Paul, Weiss to focus only on an investigation of Trumps’s finances. When Bragg was elected district attorney in November 2021, Pomerantz continued the investigation. Bragg initially declined prosecution, which caused Pomerantz to resign. In February 2023, Pomerantz published a book highly critical of Bragg’s decision. Bragg quickly switched course and indicted Trump on 34 bookkeeping counts, which had expired under the statute of limitations but were revived by adding a felony to each count. Significantly, Bragg had help from the Biden administration. Michael Colangelo vacated his plum number-three job at the Department of Justice to work for Bragg as lead prosecutor on the Trump case, a rare self-demotion.

Bragg’s indictment never specified the felony. Nor did the Biden-donor trial judge ever require the government to specify it. The jury only had to agree there was a felony concealed to promote Trump’s election, and the jury was instructed it could consider whether either “state or federal election laws” were broken. Trump ran in a federal election, so could not violate state election laws. The Constitution and Supreme Court precedent forbid Bragg, a state official, from prosecuting federal crimes. New York not only allowed Bragg to bring the case, but also allowed the judge to sentence Trump as a felon to a non-jail sentence only days before his inauguration (which made it impossible to appeal before he took office).

Subverting the Election, Mishandling Classified Information

And then Democrats brought their most serious threat — a federal special counsel investigation into whether Trump had attempted to subvert the 2020 elections. The timing was political; Attorney General Merrick Garland appointed Jack Smith as special counsel only three days after Trump’s re-election announcement. Garland did not need direct orders from the White House to open the investigation. Reading media reports that Biden thought Trump should be prosecuted because he was “a threat to democracy” sufficed. Indeed, Biden announced after Democrats’ 2024 loss his regret that the attorney general did not bring charges against Trump sooner!

Garland’s Department of Justice even went so far as to bring a prosecution against Trump for mishandling classified documents. It claimed it responded to a referral from the national archivist regarding a dispute with Trump over presidential records, even though there was no referral when Hillary Clinton mishandled classified documents. The National Archives has admitted conferring with the White House counsel regarding the presidential documents. In June 2023, Smith indicted Trump. Smith’s top aide met several times with White House officials in the weeks prior.

In August 2023, Smith indicted Trump in the January 6 case in D.C., a jurisdiction where Trump would face a jury pool that voted more than 90 percent against him. Even though the U.S. Supreme Court severely weakened the case by ruling the president immune for his official acts and by, in a separate case, virtually eliminating obstruction charges, Smith still publicly continued to attack Trump and pursue the case until the November election.

Finally Fani. Willis indicted 19 persons for “crimes” based on Trump’s challenge to the 2020 election results. Willis’ paramour and aide-de-camp Nathan Wade visited the White House at least twice during the investigation (as reflected by billing records) but he suddenly could not recall details, such as who was involved or the purpose of the meetings. With the White House’s tacit approval in hand, Willis charged the Trump campaign as a massive organized crime racket, regardless of Trump’s constitutional rights to run for federal office and challenge the results, and the rights of his supporters to vote for him.

Rebalancing Justice

The one civil and four criminal cases were all brought by avowed Democrats. The two completed state cases were tried by Democrat-donor judges. All five involved novel legal theories, never brought against any civil or criminal defendant. The cases involved actors who either met with the White House or had Biden personnel imbedded in the prosecution.

Justice requires a thorough investigation. Obtaining phone records and emails, reviewing White House logs, and putting witnesses under oath before Congress or a grand jury will determine whether there was a conspiracy. Rather than revenge, the Justice Department should defend the constitutional rights of candidate Trump and his voters against those who abused the criminal justice system to win an election.

Victoria Toensing is a founding partner of diGenova & Toensing LLP and was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general at the Department of Justice. John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Emanuel Heller Professor of Law at the University of California at Berkeley, and a nonresident senior fellow at the American Enterprise Institute.

(http://www.autoadmit.com/thread.php?thread_id=5619979&forum_id=2...id.#48594401)