If the Republican Party will not stand up to its nominees’ bad behavior, prosecutors must

Many Republicans, including some who profess no love for Donald Trump, have decried the former president’s indictment in New York. They have insisted that this indictment abrogates some fundamental principle in U.S. governance and will inaugurate a new era of partisan abuse of the criminal justice system.

This last charge is absurd: Anyone who thinks that numerous Republicans would hesitate for a moment to indict and prosecute prominent Democrats must have been living under a rock for the past two decades.

Congressional Republicans are furious that pre-Elon Musk Twitter blocked efforts to post material from Hunter Biden’s stolen laptop with no clear indications of criminal activity by Mr. Biden, much less his father.

More broadly, our country faces three choices with respect to presidential criminality: We must either accept that presidents are above the law — as monarchs and dictators are — or have a means of deterring and, if needed, punishing such criminality. And if we are unwilling to declare that presidents are above the law, we may either deter and punish criminality through the criminal justice system or by having the political parties screen and discipline their nominees so that it never gets this far.

The Republican Party has only itself to blame for these indictments and any that follow: It has wholly abdicated its responsibility to ensure that those it nominates are fit for the offices they seek.

Prior to seeking the presidency, Donald Trump had a long history of questionable dealings, from stiffed contractors to dubious promises from Trump University to repeated bankruptcies of his businesses. A few decades ago, any one of those would have disqualified a candidate from receiving either party’s nomination, for even far less weighty offices.

A smattering of Republicans declared themselves “Never Trumpers,” but little organized effort was made to block him. No elder statesman entered the race to consolidate opposition, and party leaders quickly fell in line as he reaped delegates. Even a tape of their candidate bragging about committing sexual battery could not galvanize Republicans to renounce their nominee.

We now know that House Republican Leader (now Speaker) Kevin McCarthy (R-Calif.) told his colleagues he believed that Mr. Trump has being paid by Russia. We also know that the now-Speaker blamed Mr. Trump for endangering Members of Congress by setting the Jan. 6 mob upon them. Yet then and now, Mr. McCarthy refuses to take any meaningful action to distance his party from Mr. Trump.

Lest anyone doubt that the Republican Party is wholly uninterested in taking responsibility for disciplining its own, they need look no farther than Rep. George Santos (R-N.Y.) (or whatever his name really is). Despite being exposed as having won election on an almost entirely fraudulent biography, only a handful of Republicans have demanded that he be expelled — and none with the power to make it happen.

As we have just seen in Tennessee, Republicans have no qualms about expelling elected legislators: They just limit their sanctions to Black Democrats protesting mass shootings rather than serial dissemblers like Rep. Santos.

If the Republican Party will make no effort to deter and punish criminality in its ranks, then only the criminal law stands between us and total lawlessness in the highest places.

The Democratic Party could do better at policing its own ranks, too, but it has shown nothing like the dereliction of duty of today’s Republicans. When pictures emerged of then-Sen. Al Franken (D-Minn.) pantomiming the groping of a sleeping reporter, Democrats quickly drove him out of the Senate. Prominent Democrats did not flock to former senator John Edwards’s defense when he was prosecuted for offenses bearing some resemblance to those alleged against Mr. Trump. The Democrats were much too indulgent of Bill Clinton — but they were punished for that when they lost close elections, as some voters’ revulsion bled over onto his vice president and his wife.

Once upon a time, both parties disciplined their own. Richard Nixon resigned when prominent Republicans reacted to clear evidence of his criminality. Republican leaders urged voters to choose a Democrat over Klansman David Duke when he ran for Louisiana Governor as a Republican. And Democrats urged Illinois voters to reject extremists who won the Democratic nominations for lieutenant governor and secretary of state.

But if the Republican Party continues to cower before Trump, the Constitution provides no basis for presidential immunity from prosecution.

Our Constitution’s framers knew how to protect high federal officials from criminal law enforcement that could undermine their ability to govern — but chose not to extend that protection to presidents, current or former.

During sessions of Congress, the Constitution protects senators and representatives from arrest — but makes an exception when the charges are felonies, as those against Trump are. It also protects senators and representatives — but not presidents — from prosecution for many actions undertaken in the course of their official duties.

Conservatives often criticize liberals for reading into the Constitution provisions that just are not there. The supposed immunity of presidents from criminal charges is just such a phantom provision. It would be at home in the constitution of a monarchy, but if there was one thing that united the framers it was antipathy toward monarchies and all their trappings. Britain’s King may not be arrested or sued because he is the personification of the State, but we fought a war to be free of the British crown and continue to reject such immunities for sitting presidents, much less former ones. And even the expansive British notion of sovereign immunity has not prevented punishment of former kings.

Some have questioned the seriousness of the actions alleged in the Trump indictment: falsifying business records to conceal violations of campaign finance law. A simple answer is that cover-ups are often punished even when underlying crimes are not. Presidents Nixon and Clinton’s problems both stemmed from cover-ups, not the actions they sought to conceal. New York regularly prosecutes ordinary people for falsifying business records: Mr. Trump is not being singled out at all. Although the alleged crimes he is said to have been concealing were federal, the business records were in New York, making this a New York concern.

The larger answer is that falsifying business records is a serious crime because so much of our legal system depends on the veracity of records.

In both New York and federal court, businesses may introduce their records into evidence even when they would otherwise be inadmissible hearsay — precisely because those records are presumed to be highly trustworthy. No doubt Mr. Trump and his businesses have taken advantage of this special treatment numerous times in defending lawsuits. But this elevated status for business records is indefensible unless the government punishes those that abuse the trust with deliberately false entries.

The sheer volume of dishonest entries the indictment describes, as well as alleged recordings of conversations about making the false entries, if proven at trial, would seem to exclude any possibility of accidental errors.

It should not have come to this. But it has.

If Republicans care as much about the institution of the presidency as they claim, they should start by rejecting Mr. Trump, Rep. Santos, and others whose character ought to disqualify them from high office.

David A. Super is the Carmack Waterhouse Professor of Law and Economics at Georgetown University Law Center. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1