By Jack Goldsmith*
he New York grand jury’s indictment of former US President Donald Trump for bookkeeping crimes relating to hush money paid to the adult film actress Stormy Daniels follows upon the International Criminal Court’s arrest warrant, two weeks ago, for Russian President Vladimir Putin for the war crime of deporting children from Ukraine. These cases highlight the law’s growing, and potentially dangerous, dominion in politics – domestic and international.
Both events are groundbreaking. Trump’s indictment is the first for any president, current or former, in United States history. Similarly, international courts have issued only a handful of arrest warrants for heads of state, and never for the leader of a major power. These legal actions will set important precedents and could have enormous consequences, even if neither one results in a criminal conviction. The question is whether the precedents will be happy ones, and whether the consequences will be positive on balance.
Since the Nuremberg Trials after World War II, the goal of international criminal law has been to institutionalize legal accountability for wartime activities. Most international criminal tribunals have been under the thumb of the United Nations Security Council, which meant that they could not be used against that body’s five permanent veto-wielding members (China, France, Britain, Russia, and the United States). But the ICC, by design, is not beholden to the UN. Although Russia never consented to the ICC’s jurisdiction, Ukraine has, and the ICC is proceeding on that basis.
According to ICC prosecutor Karim A. A. Khan, the arrest warrant holds out the hope that Putin will be “held accountable” for his crimes against Ukrainian children, and perhaps for the many other crimes he has directed in Ukraine. Moreover, even if Putin never ends up in the dock in The Hague, the arrest warrant could, the ICC notes, “contribute to the prevention of the further commission of crimes” in Ukraine. Harold Koh, a professor at Yale Law School and a former State Department legal adviser, contends that it might also delegitimize, isolate, and weaken Putin, thereby reducing his bargaining power.
And yet, as Koh’s former State Department colleague Stephen Pomper argues, the arrest warrant could have serious “negative effects.” Now the policy chief at the International Crisis Group, Pomper worries that the move could make Putin even more dangerous and destructive, impede any future peace process, and prevent multilateral cooperation with Russia on collateral issues like humanitarian assistance in Syria and Afghanistan. It could also harm the legitimacy of the ICC itself, especially if the warrant splits international support for the Court, or if countries refuse to meet their legal obligation to arrest and transfer Putin to The Hague if given the chance.
Analogous tradeoffs bedevil the Trump prosecution. Trump deserves to go to jail if he violated New York criminal law. The fact that he is a former president is irrelevant. And the conviction of such a powerful figure would be a special vindication of the rule of law. The indictment might also, as Alexander Burns argues, harm Trump politically by driving home to the marginal voter Trump’s sleaziness and unfitness for office.
But it could also have the opposite effect. New York County District Attorney Alvin L. Bragg’s case is widely regarded as weak, including by a respected lawyer who previously worked on it himself. Because of this weakness, and in light of Bragg’s connections to Democratic Party politics, Republicans will largely view the indictment as politically motivated, and have already managed to pick a political fight with Bragg.
The short-term politics of Bragg’s indictment, and of Trump’s angry responses, are hard to assess. But the episode seems likely to negatively impact federal Special Counsel Jack Smith’s more serious and credible investigations into Trump. Smith has a powerful case, especially when it comes to Trump’s possession of US government documents – including many highly classified ones – at his Mar-a-Lago home.
But the expected indictment in the federal case will invariably be controversial, because it will be coming from the Biden administration’s Justice Department after Trump has already announced his presidential candidacy for 2024. Following the New York indictment, Smith’s efforts will face the additional challenge of looking like a prosecutorial pile-on.
One might think that concerns about the practical consequences of prosecuting Putin and Trump are irrelevant. Both men have committed very bad acts, after all, and the rule of law demands that they be punished. Fiat justitia, ruat caelum – let justice be done, though the heavens fall.
But this is an unrealistic view of criminal law operation in high-stakes domestic and international politics. If the ICC arrest warrant leads to more death and suffering than would otherwise occur, the court and the broader project of international criminal law will be discredited. Likewise, if the New York indictment empowers Trump – and especially if it is seen as setting off a chain of events that leads to his re-election, or to destabilizing tit-for-tat retaliations down the road – it will come to be seen by many Americans as a tragic error.
We cannot know now if these things will happen, or will be seen in this way. But if so, justice obviously will not have been done.
*Jack Goldsmith is Professor of Law at Harvard Law School and a senior fellow at the Hoover Institution.