Former President Donald J. Trump has a lot at stake in the federal criminal case filed against him. He could, in theory, go to prison for years. But if he ends up in the dock before a jury, it’s no exaggeration to suggest that American justice will also be on trial.
The first federal indictment in history against a former president poses one of the gravest challenges to democracy the country has ever faced. It represents either a validation of the rule of law principle that even the most powerful are accountable for their actions or the moment when a large part of the public becomes convinced that the system has been irreparably corrupted by factionalism.
Mr. Trump, his allies, and even some of his Republican rivals have embarked on a strategy to encourage the latter view, arguing that law enforcement has been hijacked by President Biden and Democrats to eliminate his strongest opponent. for re-election next year. Few if any of them bothered to wait to read the indictment before endorsing Mr. Trump’s capitalized claim that he was simply part of the « GREATEST WITCH HUNT EVER. » Now it’s an article of faith, a default tactic, or both.
Jack Smith, the Special Counsel, and his prosecutors knew the defense was coming and worked to avoid any hint of political motivation with a textbook approach, securing nods from judges and grand jurors along the way. Additionally, their indictment exposed a damning set of facts based on security camera videos, text messages, and testimony from within Trump’s own team; even some who have defended him in the past say it will be harder to ignore the evidence in a courtroom than in the court of public opinion.
In the public arena, however, it could be a one-sided fight. Mr. Trump and his allies may shout as loud as they can that the system is unfair, but prosecutors are bound by rules that limit how much they can say in response. To the extent that Democrats defend prosecutors, it can only reinforce the point Mr. Trump is trying to make to the public he is trying to reach.
“I think the verdict on democracy ultimately comes down to Republican leaders and Republican voters,” said David Jolly, a former Florida Republican congressman who left the party during the Trump presidency. “Their current arming narrative is dangerous and destabilizing, but it seems to reflect the party’s initial consensus. If they don’t address due process and trust in the system soon, I think we could have very dark days ahead. I worry.
Polls suggest that Mr. Trump has made progress in persuading at least his own supporters that all allegations against him are purely political. After Manhattan District Attorney Alvin L. Bragg filed state charges against him in connection with monies paid to an adult film actress, support for the former president among Republicans increased, rather than diminish.
While 60 percent of all adults interviewed by CNN after approving the charges, 76% agreed that politics played a role in the charge. Regarding the effect on the American system, 31 percent said the charge strengthened democracy, while 31 percent weakened it.
All of this indicates that the system’s credibility is at stake as never before. Many have criticized American justice over the years for systemic racism, excessive punishments, the mistreatment of women subjected to assault, or other issues, but they didn’t command the presidential speaker. When past presidents like Richard M. Nixon or Bill Clinton got into trouble, they defended themselves aggressively, but they didn’t question the whole system.
« From 1972 to 1974, Republicans participated as bona fide members of the process, » said Garrett Graff, author of « Watergate: A New History, » published last year. “They saw their role first as lawmakers and then as Republicans. They were decidedly skeptical « initially of the allegations against Nixon, » but followed where events led.
Even Nixon’s sharp-tongued Vice President Spiro T. Agnew was careful to broadly disparage the justice system. « Agnew, of course, was Nixon’s attack dog, but mostly against the press, not the FBI or the special prosecutor, » Mr. Graff said.
Mr. Trump, on the other hand, is holding nothing back as he attacks « the ‘thugs’ in the Injustice Department » and calls Mr. Smith a « deranged nut. » Republicans like Rep. Andy Biggs of Arizona have called for the dismantling of the FBI « We have now reached a stage of war, » he wrote on Twitter on Fridays. « Eye for an eye. » Elon Musk said authorities were showing up “much higher interest in prosecuting Trump compared to other people in politics”.
Many of Trump’s competitors for the Republican presidential nomination have joined. Former Vice President Mike Pence likened the charge to leaders of « third world nations » who « use a criminal justice system in their own country against their predecessors. » He said Governor Ron DeSantis of Florida “the federal law enforcement weapon represents a mortal threat to a free society.”
Defenders of the former president generally do not address the substance of the 37 counts against him, but instead present a selective prosecution case that resonates strongly with many Republicans: What about Mr. Biden? And Hunter Biden? And Hillary Clinton?
They point to the origin of the Russian investigation against Mr. Trump, citing the recent report by Special Counsel John H. Durham which sharply criticized the FBI for its handling of the case even though it did not provide successful new revelations of political misconduct reasoned nor lead to the condemnation of any important figure.
They point to Republican congressional inquiries that they say hint at wrongdoing by the Bidens even without confirmation. They point to the ongoing federal criminal investigation of President Hunter’s son, suggesting it has been obstructed. And they underline the fact that the president himself is also being investigated for possession of confidential but not accused documents.
The differences between the cases, however, are stark, making apple-to-apple comparisons tricky. In the investigation into the documents, for example, so far Biden’s advisers have returned the documents to the authorities soon after discovering them. Mr. Pence did the same after a voluntary search found the former vice president had kept confidential documents, and he was recently cleared by the Justice Department because there was no evidence of intentional violations of the law.
Mr. Trump, by contrast, has refused to hand over any documents he had taken from the White House, even after being subpoenaed for them. According to the indictment, he orchestrated an expansive plan to hide documents and feed lies to the authorities looking for them. On two occasions, according to the indictment, Mr. Trump showed secret documents to people without security clearances and indicated that he knew he shouldn’t have done it.
As for trying to arm the Justice Department, there was ample evidence that Mr. Trump sought to do so while in office. He openly and aggressively pushed his attorneys general to prosecute his alleged enemies and drop cases against his friends and allies, without pretending that he was seeking independent and fair justice. Her approach of friends and family to his power of forgiveness extended leniency to associates and those who had access to him through them.
He broke so many regulations during his four years in office that it’s no wonder institutions faced credibility issues. Indeed, he has made it clear that he does not respect the boundaries that have bound other presidents. Since leaving office, he has called for the Constitution to be « resolved » so he can return to power without waiting for another election and vowed to devote a second term to « punishing » his enemies while pardoning supporters who stormed the Capitol on January 6, 2021, to stop the transfer of power.
There is no known evidence, on the other hand, that Mr. Biden played any role in the investigation against Mr. Trump. Unlike the mercurial Mr. Trump, he has been careful not to comment even publicly on individual court proceedings, saying he respects the Justice Department’s autonomy.
Attorney General Merrick B. Garland has been sensitive to the perception issue and has sought to isolate the investigation by appointing Mr. Smith, a career prosecutor who is not registered with either political party, as a special counsel with a guarantee of independence in the absence of manifest wrongdoing on its part.
But that was never going to convince Trump or his staunchest advocates of a fair trial. At the bottom, the former president and favorite for his party’s nomination for the next president is charged by a prosecutor appointed by a appointee of the man he hopes to beat. It’s a recipe for distrust, especially when fueled by a defendant who has mastered the politics of resentment and victimhood.
Will this do permanent damage to democracy? Even some who support the Trump charge fear it could happen. However, some who have studied politically complex investigations have advised patience. There will be fireworks. Many will doubt the credibility of the system. But ultimately, they said, the system will survive just as it has for more than two centuries.
« It’s messy and uncomfortable for the generation that lives in it, but the system is resilient enough to win, » said Ken Gormley, president of Duquesne University and author of books on Watergate and the Clinton investigations. “As painful as the next year may be as the criminal justice system moves towards a fair verdict in the Mar-a-Lago documents case – whatever the outcome – we are fortunate that our predecessors spent 234 years shoring up the bulwark ».
