A Dangerous Indictment

trump indictment

For the first time in history a former President of the United States has been formally charged with committing a crime, in this case against the laws of the State of New York after a New York grand jury voted to indict Donald Trump. Trump surrendered to the court on Tuesday, April 4, after which he was processed as is the case for every indicted person, including being fingerprinted and having “arrest photos”, better known as mugshots, taken. Trump was then escorted to an arraignment hearing, where Acting New York Supreme Court Judge Juan Merchan read the formal charges brought against him and ask Trump what is his plea to the charges. He pleaded “not guilty” to all charges, beginning the long process including preparations for a trial.

We do not yet know the details of the accusations against Trump, only that he has been 34 counts of business fraud related to the payment of “hush money” to keep two women from revealing alleged affairs with him immediately prior to the 2016 presidential election. Many legal scholars have suggested that the case against Trump in this New York State indictment is much weaker than in several other criminal cases that are proceeding against him in other jurisdictions, including cases in Florida, in Washington and in Georgia that represent significant risks for Trump. The fact that the case in New York is the first indictment means all eyes are on this case, and if Trump’s lawyers are able to defend him successfully in this “weaker” case, he will no doubt take advantage of that, and it may well impact the attention given to other cases.

Until the charges are analyzed in detail it is impossible to predict their legal weight, but irrespective of that outcome, this indictment and the other indictments against Trump that are highly likely to follow represent an important chapter in the political process in the US. Given the extreme polarization of the country into two comparable sized camps increasingly hostile to the other side and given Trump’s ability to inflame his followers to protect himself, America appears in a particularly vulnerable moment in its recent history. “The prosecution of the 45th president…may pose the most critical challenge yet to its system of justice. It is the latest stunning barrier shattered by the nation’s most unruly president. And it means that after a tumultuous four-year term, a historic two impeachments, an election falsely tainted by Trump’s lies about fraud and a mob attack by his supporters on Congress, a new national nightmare may be ahead.”[1]

No one in America likes to be indicted, not even Donald Trump. But he has an uncanny ability to turn what for most people would be a disaster into a positive event. It is already clear that he will convince his followers that the accusations against him come from a legal system that is biased, that is engaged in a political “witch-hunt” that the Democrats have invented to prevent him from getting re-elected, successfully presenting himself as a victim of a legal system that he denigrates as unfair and not worthy of being respected, or even accepted. I agree with many observers saying Trump will benefit politically from this indictment with the Republican Party, at least in the short term, although I think it is much less likely that being indicted will help him in the presidential election, if he becomes the Republican presidential candidate in 2024.

And, sadly in my view, the entire Republican Party has rallied to his cause, contributing to their denigration of the US legal system, with all of the senior members, even including his principal rivals, defending Trump’s view that the indictment is illegitimate: “Outrageous” says House Judiciary Chair Jim Jordan of Ohio, an “injustice” according to House Speaker Kevin McCarthy, “un-American” says his principal Republican rival Ron DeSantis.

This indictment is, again in my view, harmful for the country, contributing to the vicious fire of national discord. On the other hand, if a crime has been committed, and for the moment, like any accused person in the US Trump is entitled to the presumption of innocence until proven guilty, but if he has committed a crime, should he not be subject to the same rules of the legal system than any other person? In the long run, it is difficult to counter this fundamental argument, that “no one is above the law”, a legal system loses its credibility if it does not apply to everyone.

But I observe with dismay and considerable anxiety the coming spectacle of open conflict over the legal processes involving Trump, with an effort by the legal system to bring him to accountability, if as seems likely crimes have been committed, and his utilizing every possible tool in his considerable arsenal, including mobilizing massive protest from his followers, to combat the quest for accountability, and this in the midst of a presidential campaign where he is the front-runner to become the presidential candidate of the Republican Party. Twice in recent history the US has avoided a major crisis, when Richard Nixon resigned rather than fight an impeachment and likely condemnation and the subsequent avoidance of the spectacle of a president being put on trial for a crime when Gerald Ford used the supreme presidential prerogative to pardon Nixon, and in the contested presidential election of 2000, Al Gore graciously conceded rather than cause a possible constitutional crisis by contesting the results of the Florida presidential election. But the major players in these critical moments had a profound respect for US democratic institutions, which is clearly not the case for Trump.

The repercussions of the legal battles around accusations against Trump, his already predictable reaction feeding the anger of his outraged partisans and the political consequences of these events on the country will be critical and perilous issues for the months to come, perhaps presaging a deep political crisis for the presidential election of 2024.

There is little risk of overstatement to consider Trump to be the most perturbing US president in the last century. It will take many years for America to deal with his impact, with the virtual certainty of a long period of considerable conflict and crises, leaving the country profoundly changed from where it was before his unruly time in power. Will the US come out of this difficult period weaker, or will its democratic institutions survive and become stronger? A great deal hangs in the balance of the answer to this question.

[1] CNN Politics, “Trump’s criminal indictment unleashes a bitter new phase in American politics”, Stephen Collinson, March 31, 2023

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