Don’t Cut Corners on Indicting Trump
Trumpists will portray any indictment as political. Prosecutors can’t let them make that argument persuasively.
Keeping track of all the cases Donald Trump has caught can be hard. There’s the Georgia election-fraud investigation into Trump’s attempts to overturn the 2020 results in that state, which he lost; there’s the New York civil investigation into alleged financial fraud by the Trump Organization; there’s the Manhattan district attorney’s inquiry into possible campaign-finance violations from Trump’s alleged hush-money payment to the adult actress Stormy Daniels; and there’s the federal special-counsel inquiry regarding Trump’s handling of classified material.
Over the past few weeks, media speculation about criminal indictments has led to conservative media figures and Republican legislators threatening retaliation against prosecutors, with some Trump supporters (and Trump himself) hinting at the possibility of political violence. This is an object lesson in the distinction between “law and order” and the actual rule of law: The former is a conservative shorthand for lawlessness that exempts those in authority from the rules, while the latter applies the law to everyone. Some Republicans’ demands for Democratic Party leaders to pressure legal officials over prosecutorial decisions are themselves a clear expression of the idea that the law should be enforced only against people whom conservatives despise.
Trumpist demands that Trump be above the law, however, should not obscure the necessity that any criminal indictment of the ex-president follow the law to the letter. Media coverage has suggested that Manhattan District Attorney Alvin Bragg’s criminal inquiry into Trump’s alleged hush-money payments may be the shoe likeliest to drop first, but some legal experts have questioned whether that case is a strong one. The trial of the former Democratic presidential candidate John Edwards, over payments to a former lover, offers a precedent for such an indictment. But it also provides a warning that such cases are difficult to prosecute: The Edwards jury ultimately deadlocked over whether the payments amounted to a crime, and he walked. I won’t speculate on the specifics of this case, but any indictment should be based on clear and convincing evidence that Trump committed a crime, not on personal or partisan ambitions.
Trump has cultivated cynicism about the rule of law by portraying its enforcement as a mere tool of partisan politics; flattering that impression with a flimsy case would undermine the rule of law rather than strengthen it. Impeachment is a political process, but Democrats prepared two strong and thorough cases in both impeachments, each brimming with evidence of Trump’s repeated and deliberate attacks on democratic sovereignty. No criminal indictment of Trump should be held to a lesser standard.
Trump’s political status has already won him preferential treatment from the legal system. Most people do not have the financial or legal resources to fight prosecutors; very few charges lead to trials, because most people, even if innocent, will cop a plea rather than risk more time. But indicting a former president is inherently political, and although Trump supporters will not be moved even by strong evidence, a weak case will strengthen the cynicism about the rule of law that Trump has so successfully exploited for his own purposes. Trumpists will portray any indictment as political, but it does actually matter if the case is weak enough for that argument to be made persuasively.
This is not the same as saying that Trump should skate on something perceived as a small offense when he appears guilty of much greater offenses. There was nothing unfair or dishonorable about nabbing Al Capone for tax evasion, but the government did, in fact, have to prove that he evaded taxes. The stakes are even higher when the greater offenses include an assault on democracy itself.