It’s become a recurring scene at the political rallies of Vice-President and Democratic presidential nominee Kamala Harris. Harris refers to the ongoing criminal cases against her electoral opponent, Donald Trump. The crowd begins to chant, “Lock! Him! Up!” And Harris calmly but firmly shuts it down. “Well, hold on,” the VP said earlier this week to her own crowd, “You know what, the courts are going to handle that part of it. What we’re gonna do is beat him in November.”
Harris deserves credit here. It’s been far too long since we’ve seen political leadership from either party push back against the frenzied rush to turn criminal prosecution into raucous political bloodsport.
Without question, Trump himself gets blame for starting and inflaming this whole lockup-chant craze. Trump and his crowds made it a rally mainstay back in 2016, during the pendency of the DOJ’s criminal investigation of Hillary Clinton for mishandling classified information on private email servers. At the time, Democrats (and others) rightly recoiled at the vision of arenas full of sign-waving partisans screeching to strip a political opponent of her individual liberty and toss her behind bars. Trump started it, no question about it, and he blew it up — even if he now falsely claims he never said “Lock her up” at all. (He definitely did.)
Democrats eventually adopted their own version of the call-and-response, albeit with less gusto than Trump and his crowds. But until Harris took up the party’s mantle, Democrats stumbled when their own supporters made like bizarro-MAGA assemblies and demanded that Trump go to prison. President Joe Biden tended mostly to look out at the crowd with bemusement, mildly encouraging while neither quite stoking nor squashing the bellicose chants.
The hypocrisy, of course, is plain. The same folks who insisted there’s absolutely nothing political about the Manhattan DA’s prosecution of Trump (or any of the other pending cases against him) immediately turned it into campaign propaganda: wishful memes of Trump in an orange jumpsuit; campaign fundraisers based on the Manhattan conviction; obnoxious, ill-fitting “34” hats celebrating the number of counts in that case; those “lock him up” rally chants; and, upon the ascension of Harris as the presidential nominee, the irresistible contrast of “Prosecutor vs. Felon.” No, no, no: Nothing at all political about the case — we’ll just immediately turn it into giddy, hyperventilating political fodder!
My criticism here is, of course, aimed at the Manhattan DA’s hush-money prosecution; the federal January 6 and classified-documents cases are currently flipped over in a ditch with their wheels spinning, but they’re entirely justified and may yet reach fair conclusions. As for Manhattan, we don’t need to fully relitigate the merits and fairness of the DA’s charge. If you’re perfectly comfortable with (1) an elected Democrat boasting during his campaign of his ability to pursue one specific individual, (2) filing a case that had been declined by federal prosecutors during the Biden administration and by the FEC, one that was described by the DA’s predecessor as a potential “exploding hand grenade,” (3) that case being handled by a judge who broke the rules by donating money (a tiny amount, $35) to a political operation dedicated to “resisting the Republican Party and Donald Trump’s radical right-wing legacy,” and (4) an unprecedented indictment that piled one expired misdemeanor on top of another expired misdemeanor to create a first-of-its kind felony of the lowest possible classification, seven years after the conduct in question — then we’ll agree to disagree.
But even the DA’s most ardent anti-Trump flacks have to concede: The man still has his appeal rights. In fact, our justice system rightly recognizes that a case is not truly over until the appeals are done. Funny how quick some liberals are to dispense with this fundamental protection of individual liberty when it doesn’t suit their immediate political impulses.
And Trump might well win his appeal, eventually. Never before in all of United States history has a state-level prosecutor assumed the power to charge a violation of federal campaign-finance law, either as a freestanding criminal charge or a predicate to some other charge. Never.
Take it from one of the nation’s leading election-law experts, Rick Hasen, who undeniably leans left and has no love for Trump: “There’s an issue, and this issue came up a little bit in the New York Trump prosecution, which is whether or not state election officials have the capacity to enforce federal campaign finance law. And there’s actually a statute that seems to give exclusive jurisdiction on the federal side to these questions. This is one of the reasons why I’ve always been suspicious of using the violation of federal campaign finance law as a predicate in the Trump state prosecution.” Hasen later said (in a different context not relating specifically to the Trump case) that “someone trying to use state legal process to find a criminal violation … for use of [federal] campaign finance money” could be not merely frivolous but “sanctionable” — meaning so ridiculous that a lawyer could be punished for pursuing it. The same analysis applies squarely to the DA’s case.
Yet even while Trump pursues his potentially meritorious appeals, the very same liberals who claim to value due process — who ordinarily would recoil from the notion of branding a nonviolent low-level offender with still-pending appeals as a “convicted felon” — instead celebrate the dubious conviction like they just won the Super Bowl when it comes to Trump.
They should take a cue from Harris herself. The VP and Democratic presidential nominee has nailed this issue, pitch perfect. Remember that Harris was once a prosecutor, serving as San Francisco district attorney and later California attorney general. You need to do the job before you can understand how ugly and frivolous it is to chant at a rally about locking somebody up. Anyone who has watched another human being get hauled away to prison while his kids cry in the gallery would think twice about turning it into an ecstatic rally chant. Harris gets that.
In her rally responses, Harris has shown impressive temperance and moderation. I’m sure that, on some level, it feels good to stand in front of 10,000 people chanting to lock up your electoral opponent. It’s got to be awfully tempting at least to smile and nod along a bit. But Kamala Harris has risen above it.
This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
