Our Laws Are Not Our Politics

A courtroom sketch shows former President Donald Trump in court for an arraignment in New York City on April 4. REUTERS/Jane Rosenberg

There’s a decent chance that this is, once again, indictment week. 

This new set of federal charges, expected out of the grand jury in D.C. any day now, is the most legally perilous for the ex-president and consequential to the nation. And over the last 24 hours, Trump has been lashing out in anger at what are likely imminent charges. Perhaps he is even aware of a timeline.

Trump’s allies have all but written off the prior indictments, in bad faith I should add, as mere “accounting” and “paperwork” disputes that have been blown completely out of proportion—an ironic claim given the “Lock Her Up!” chants in 2016 against Hillary Clinton over her innocuous use of a private email server.

But it is hard to simply dismiss Trump’s attempts to overturn the 2020 election and his role in the violent insurrection at the Capitol. This is a moment of reckoning, not just for Trump, but for the GOP and the country as a whole. At stake is no less than our democracy, the peaceful transfer of power, and the rule of law that has guided our nation for two plus centuries.

Still, there’s a stark disconnect in plain view. As Trump’s legal issues mount and the indictments rack up, Republican voters are doubling down, seemingly more loyal to Trump than ever. We now face the strong prospect that the 2024 election will be a contest between a Democratic incumbent and a convicted felon. Trump might even have to run next November from prison or other some kind of confinement.

Meanwhile, many Democratic voters vaguely assume that Trump’s mounting legal woes, likely further indictments, and possible convictions and prison sentencing will somehow put an end to this nightmare. On this they are often shocked to learn that the long arm of law, the one that could finally send him to prison, will not be able to stop him from regaining the presidency and trying to undo his convictions.

In short, we are in the upside-down. And it reveals an important point worth repeating now: Our laws are not our politics. 

The role of the prosecutors

It is the job of the state and federal prosecutors to enforce our laws and allow no one to stand wholly above them, as Trump seemingly has until this year. The prosecutors investigate, they present their facts and evidence to the grand jury, and then they obtain an indictment if they believe they can prove guilt at trial.

From there they prepare their cases, fend off a likely slew of motions from the defense, and head to trial, where juries of ordinary citizens—in Manhattan and Miami, and likely next D.C. and Atlanta—will determine, hopefully unanimously, whether Trump is guilty beyond a reasonable doubt. If he is convicted, judges will then determine sentencing, presumptively based on guidelines around the crimes on which he is convicted. Trump will have his chance to appeal based on asserted errors of law made by the trial court. He may or may not be behind bars pending that final outcome.

Notice in all of the above that there is nothing that says, “Trump can’t run for office.” Our system wasn’t set up well to deal with an indicted defendant seeking the highest office in the land. Perhaps it was because the framers assumed no one would ever vote for such a man. In any event, the qualifications for that highest office are enumerated in the U.S. Constitution, and to change them might require a constitutional amendment. 

I say “might” because previous attempts to add qualifications or restrict candidates from running for president, by requiring things like public disclosures of tax records in order to qualify for states’ ballots, have been unsuccessful. And there is a real question about whether Congress, as a co-equal branch of government, can impose any conditions upon the Executive by way of statute and not constitutional amendment.

This all might get litigated next year, but it’s already a given that we will have no clear answer before the first primary ballots are cast.

The role of the voters

Voters will have two opportunities to stop this crazy train. First up are Republican voters in Iowa, which will hold the first GOP presidential contest in January. They will get an initial say over whether they really want Trump, with all his criminal baggage, at the head of the Republican ticket. That state’s caucus will be followed quickly by primaries in New Hampshire and South Carolina. 

Were current polls to hold, Trump would destroy his competitors in those states and have a near lock on the GOP nomination. He’s currently running 30 points ahead of his nearest rival in Iowa and far ahead of them all in both New Hampshire and South Carolina. If this is still hard to fathom, consider that most Republicans view the investigations and indictments as purely politically-motivated, even though the White House has had no involvement whatsoever in them. Within the peculiar information bubble of the right, Trump is the victim of a deep state witch-hunt, and every new charge only solidifies his base’s support for him. 

The calendar from there is worth paying close attention to. The Manhattan case for business fraud, which carries the lowest legal stakes, will begin on March 25, 2024, if the calendar holds. Next up is the May 20, 2024 trial date for the Mar-a-Lago national security documents theft case. Trump’s lawyers had pressed for trial dates after the November election, while Jack Smith’s team wanted December of 2023. Judge Aileen Cannon split the baby and set the trial for late May 2024, though any number of delays could push that date off by months.

Given the size and complexity of both the January 6 case in D.C. and the state election interference case in Georgia, assuming those indictments drop in the next few weeks, neither trial is likely to be set for later this year or even early next year, and they will both have to consider other already-pending trial calendars.

This means that most Republican voters will cast ballots for Trump not knowing whether he is an indicted defendant or a convicted felon. But for most who have made up their minds for him, it won’t matter. 

Moreover, even if Trump is convicted and sentenced in one of these jurisdictions prior to the November election, it is very likely that he will continue to campaign and that his name will still appear on the ballot. In theory, he could even run from prison, as Socialist candidate Eugene Debs did in 1920. Again, there is no express prohibition in our laws on this.

That’s when the next set of voters—all of us in the general election—will get our own chance to stop that train. By November 5, 2024, we may have the benefit of knowing whether Trump is actually running as a convicted felon. While that might not matter to most Democrats, who already plan to reject him, it could well prove persuasive for many centrist or disaffected GOP voters. This is important, because in order for Trump to win, he will not only have to gather and motivate more of his base to vote for him than in 2020, he will have to win back Republican and centrist voters who abandoned him in the last election cycle.

It’s a bit hard to see how Trump will pull that off next November if he is either a convicted felon or facing trial soon on serious federal and state charges. We already saw how Trump’s kind of MAGA extremism and election denialism tanked candidates across the board in the 2022 midterms because a decisive number of Republican and independent voters balked. That rejection of the extremists occurred after Trump endorsed them; when his name is actually on the ballot, voter rejection of MAGA extremism likely will be even more resounding.

In short, while Trump is wrong to claim that the investigations and indictments are politically-driven election interference, they will in fact have an impact on voter perception and motivation in 2024. But we shouldn’t mistake cause and effect. Trump may be able to successfully mislead his supporters into believing that these cases sprang from nothing but politics, but middle-of-the-road voters will recognize that he brought these issues upon himself, are growing tired of the drama, and simply don’t feel much if any allegiance to him. 

The upshot is that Trump is both likely to be the GOP nominee and likely to lose badly in the general election based on current projections. And he could wind up pulling down the GOP with him if voters turn out in large numbers to reject him again and vote blue down the ticket. We will have to work hard to make sure this happens, but the numbers are there for us to secure that victory.

Finally, there’s a certain irony worth noting. Should this electoral disaster occur for the GOP, it will be of its own making. They had their chance to keep Trump from running for federal office under the express terms of the U.S. Constitution after he was impeached by the House. But McConnell decided the Senate should acquit him and let the criminal justice process sort it out. 

As to that last part, while it is going more slowly than any of us would like, the prosecutors are doing their jobs. And not long from now, it will be time for us voters to do ours.