After Hillary Clinton and Donald Trump, Americans remain deeply divided over political prosecutions.

David Petraeus had a classified documents case. So did Hillary Clinton. Now so does Donald Trump, who is being indicted by Special Counsel Jack Smith. And so does Joe Biden.

All would be and actual presidential candidates and presidents, with varying degrees of popularity, but all were humbled or are being humbled by the prospect and fact of U.S. Justice Department investigations over their handling of classified documents during and after their times in office. 

Despite the publicness of these cases, they were not result of a groundswell of public sentiment against these public figures and candidates — Trump supporters popularized the “Lock her up!” chant in 2016 against Clinton for keeping classified documents on her private home-based email server — but rather internal decisions made at the Justice Department to, one by one, show who’s really boss in Washington, D.C.

In fact, when it comes to prosecuting presidential candidates, hereafter political prosecutions, the American people remain deeply divided.

In 2016, when the Justice Department opted not to bringing charges against Hillary Clinton, 56 percent of Americans in a July 2016 ABC News-Washington Post polldisapproved of the decision not to charge her. 35 percent supported the decision. Broken down by party, unsurprisingly, 9 out of 10 Republicans disagreed with not charging her, while two-thirds of Democrats agreed with it. Independents slightly went with Republicans, with 6 out of 10 disagreeing with the FBI’s decision. 

So, while there was some majority support for prosecuting Clinton, it was by no means unanimous or near unanimous over her handling of classified documents. The public was divided. Which, no surprise, it was the middle of the presidential election. Hillary Clinton was the Democratic Party’s nominee. What would have been strange—and unprecedented—would have been if she had been prosecuted.

Fast forward to 2023, where former President Donald Trump is the Republican frontrunner for president in 2024 to square off against President Joe Biden. Trump is now to be indicted by the Justice Department over his own handling of documents he says he declassified on his way out of office. 

When the FBI raided Trump’s Mar-a-Lago residence in Palm Beach, Fla. in Aug. 2022, the public was similarly divided about the prospects of a criminal case being brought against Trump on this basis. In a Harvard-CAPS Harris poll taken Sept. 2022, 51 percent of voters thought that the FBI raid was politically motivated, while 49 percent thought it was required by Justice Department protocols. Broken down, unsurprisingly, 77 percent of Republicans thought it was politically motivated and 77 percent of Democrats thought it was not. Independents were more divided, with 53 percent saying the FBI raid was politically motivated, and 47 percent saying no.

Assuming a similar breakdown will arise from the Justice Department’s indictment of Trump—the former president’s poll numbers have actually improved after New York City District Attorney Alvin Bragg indicted him over alleged “hush money” to adult actress Stormy Daniels—the country simply lacks any workable consensus around prosecuting and imprisoning prominent political figures. 

For similar reasons, no president who has been impeached — Biden might be impeached for allegedly taking a $5 million bribe from a Ukrainian businessman when he was Vice President, or perhaps for prosecuting his political rival, Trump, or both — has ever been removed from office. The process requires two-thirds of the Senate to convict, because the Framers sought to make it very difficult to achieve. They were aware of how factions would seek to topple one another with the prospect of using the law to take down political opponents. 

In this case, the Justice Department and various city district attorneys appear determined to show how easy it is to bring charges against whomever they please, especially prominent political officials, without any consideration to the legitimacy of their actions and the consent of the governed, key underpinnings to how the civil society is able to continue functioning. The reasons could be related to policy, that is, with these Swords of Damacles dangling over elected leaders’ heads, maybe they’ll listen to the intelligence being pushed by their advisors. Start this war, end that one, and so forth. It could be leverage.

President Joe Biden had a special counsel appointed to over his handling of classified documents. A few weeks later he was sending Abrams tanks to Ukraine he had previously stated he would not for fear of escalating the conflict even further after Russia invaded Ukraine in 2022. You’ll do what you’re told, Mr. President.

But perhaps this is just standard procedure and it’s about the rule of law. David Petraeus, who might have run for president in 2016, Hillary Clinton who did, Donald Trump and Joe Biden all have had classified documents cases brought or threatened to be brought against them. 

The problem the Justice Department will run into, of course, is that their legitimacy and public support for taking down a candidate or a president is only supported by a faction that opposes that candidate or president. This will create an incentive for the other faction to support doing the same thing, a vicious cycle of political prosecutions that similarly brought down the Roman Republic two millennia ago. In fact, of all the ways to weaken a constitutional republic, this is one of the most well-documented ways to do it. Maybe they’re foolish, or perhaps it’s on purpose.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation. 

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