Re-election as president came to Donald Trump despite a long list of negative labels, including accusations of racism, misogyny, and antisemitism, among others. His extensive base of supporters largely dismissed these characterizations, viewing them as subjective opinions. However, they could not overlook the undeniable fact that Trump is a convicted felon.
In the 248 years of the United States’ history, Trump stands as the first individual to be elected president after receiving a felony conviction. Remarkably, he secured not only the required 270 electoral votes for the presidency but also the national popular vote.
Donald Trump makes history as the first convicted felon elected president
The Manhattan District Attorney’s office, which prosecuted Trump, is now seeking to postpone sentencing until he completes his term, attempting to uphold the conviction in light of the election results. Meanwhile, Trump’s legal team argues that the election outcome should lead to the dismissal of the case entirely.
Regardless of the eventual outcome, many are left contemplating what actions could have been taken differently. Prosecutors should be at the forefront of this reflection, needing to assess the implications of the election results on their practices, methodologies, and public perception.
Eighty years ago, former Attorney General and Supreme Court Justice Robert Jackson articulated the profound influence of prosecutors, stating that they possess “more control over life, liberty, and reputation than any other person in America.” He warned that while a prosecutor can be a positive force, they can also be dangerous if driven by malice or ulterior motives.
Jackson emphasized the need for prosecutors to avoid the misuse of their power, cautioning against the tendency to choose targets based on personal beliefs rather than the merits of the cases. He underscored that the focus should be on prosecuting conduct, not individuals.
The rationale behind this principle is straightforward. As Jackson observed, the legal system contains a myriad of offenses, allowing a prosecutor to easily find a technical violation by nearly anyone. Consequently, it often becomes a matter of selecting a person first and then searching for an applicable law, rather than uncovering a crime and identifying the perpetrator.
This prosecutorial approach raises serious concerns about potential abuses of power, leading to what Jackson described as a personalization of law enforcement.
Historically, a felony conviction would have disqualified someone from running for any office, especially the presidency. This is no longer the case, suggesting a loss of public trust in the impartiality of prosecutorial discretion, which many perceive as politically motivated.
A 2022 Gallup poll revealed that only 14 percent of respondents expressed a strong confidence in the criminal justice system, a drop of six percentage points from the previous year. This lack of faith in the justice system ranked lower than public confidence in banks, healthcare, and even the media.
The decline in trust can be attributed to perceptions of politically motivated prosecutorial decisions, a sentiment echoed by individuals on both sides of the political spectrum.
For example, during the 2016 campaign, the FBI’s investigation into the Trump campaign’s connections to Russia lost credibility when it was revealed that the investigation originated from a report commissioned by the Clinton campaign. Conversely, Attorney General Bill Barr faced criticism for his handling of the Mueller investigation and his involvement in the prosecution of Roger Stone, actions widely viewed as partisan.
Between 2021 and 2024, former President Trump faced numerous legal challenges, yet in 2024, his millions of supporters largely overlooked his felony conviction, his January 6 indictments, and the civil judgments against him related to sexual assault and defamation.
Both sides have valid points in their criticisms. While Barr’s actions drew rightful condemnation, questions remain about the motivations behind the civil charges filed by New York Attorney General Letitia James regarding Trump’s bank fraud case, particularly given that the bank claimed no loss and viewed Trump’s valuation as subjective. Similarly, felony charges brought by Democratic prosecutor Alvin Bragg against Trump were typically categorized as misdemeanors, with jail time being a rare consequence.
The public was left to grapple with the inconsistency of Trump facing felony charges for mishandling classified documents, while Sandy Berger, a former Clinton administration national security adviser, was allowed to plead to a misdemeanor after actually removing and destroying classified documents.
A felony conviction no longer disqualifies presidential candidates in the modern era
Ironically, the most egregious actions by Trump—his incitement of the January 6 insurrection—will likely remain unaddressed in court due to delays and indecision from Attorney General Merrick Garland, who may have hoped Trump would not be renominated. This delayed justice effectively denies accountability for serious misconduct.
With the result of January 6 now ignored and Trump’s promise to pursue legal action against his political opponents reinforced by his appointment of partisan attorney Pam Bondi, a crucial moment has arrived for prosecutors. They must reflect on their roles: Are they pursuing justice or vengeance?
The pressing questions for them are whether they will act as impartial representatives of the law or engage in partisan retribution. Will they perpetuate a cycle of political retaliation or uphold the principles established by Justice Jackson?
Prosecutors wield influence within the criminal justice system. While juries determine verdicts, prosecutors decide which crimes to pursue based on public safety concerns, balancing them against budgetary constraints. To restore trust in the justice system, incoming prosecutors, beginning with Bondi, must heed Jackson’s counsel that emphasizes the importance of compassion, truth-seeking, and humility in their work.
Understanding that prosecuting an elected official disrupts the will of voters is vital, and such actions should be reserved for the most serious situations. They must be prepared to resist external pressures and prioritize their commitment to impartial justice.
Such a recommitment would signal a welcome return to the ethical standards that have historically guided prosecutors, benefiting both the present and future generations.
John J. Farmer Jr. has served as an assistant U.S. attorney, New Jersey attorney general, senior counsel to the 9/11 Commission, and director of the Eagleton Institute of Politics. Charles B. McKenna has experience as an assistant U.S. attorney, executive U.S. attorney for the District of New Jersey, and director of the New Jersey Office of Homeland Security and Preparedness.
