The Trump Indictments: Law and Politics Collide

Image courtesy of The Wall Street Journal

My wheelhouses are law and politics, and the historic indictment of ex-president Donald Trump presents a nearly fully-overlapping Venn diagram of the two. From the outrage coming from leaders on the right, contrasted with the more tempered responses from those on the left, we can already draw insights into how the criminal charges are playing out politically, even several days before Trump is expected to step into a courthouse to face arraignment.

From the right, the indictments represent a weaponization of the legal system to attack a political opponent and presumptive leader of the other party. The prosecution is being carried out by a political operative who they claim was bought by a deep pocketed “globalist” donor, and it’s blatant interference with the 2024 presidential election. Democracy itself is under attack, because if they can do this to Donald Trump they can do it to anyone. 

From the left, the charges are the beginning of a long-overdue effort to hold Trump accountable for his many crimes, in this case one where someone else already went to jail for them. Rather than constituting an attack on democracy, the charges represent essential guardrails for our system because, simply put, no one is above the law. The system is finally working as it is supposed to, and that means rich, powerful men don’t get a pass.

Who will have the better argument before the American people? That will depend on what crimes Trump has been indicted on, how strong the case is, and ultimately whether this and further indictments wind up feeling like persecution or justice. For this reason, it’s important to understand where things stand, what we do and don’t know about the charges, and key background matters that aren’t often discussed.

Let’s first review the political landscape before diving into the legal details and some key facts about the case.

An assault upon democracy or a strengthening of it?

The right began staking out its political position when it became clear that indictments were likely to drop soon. By and large, extremist pundits and GOP political leaders took their cues from Donald Trump, who called the charges “political Persecution and Election Interference at the highest level in history.” He further wrote,

The Democrats have lied, cheated and stolen in their obsession with trying to ‘Get Trump,’ but now they’ve done the unthinkable. Indicting a completely innocent person.

Last night on his top-rated program, Tucker Carlson of Fox weighed in with a truly bad and irresponsibly dangerous take, comparing the Manhattan indictments to the insurrection and assault on the Capitol:

If you believe in our system and you want it to continue, you have to raise your hand and say stop, because this is too great an assault on our system, much greater than anything we saw on January 6th, that’s for certain.

Even would-be challengers to Trump bent the knee. Said Mike Pence to CNN, “The unprecedented indictment of a former president of the United States on a campaign finance issue is an outrage.” And Ron DeSantis took two opportunities to make antisemitic comments in his statement, while grandstanding about refusing to help extradite Trump when it’s already clear Trump will turn himself in:

The Soros-backed Manhattan District Attorney has consistently bent the law to downgrade felonies and to excuse criminal misconduct. Yet, now he is stretching the law to target a political opponent. 

Florida will not assist in an extradition request given the questionable circumstances at issue with this Soros-backed Manhattan prosecutor and his political agenda.

From Democratic leaders, there have been far more sober, measured responses. 

Senate Majority Leader Chuck Schumer noted that the law should not play favorites, and that this case should be tried in court, not in public. “Donald Trump is subject to the same laws as every American. He will be able to avail himself of the legal system and a jury, not politics, to determine his fate according to the facts and the law.”

House Minority Hakeem Jeffries underscored how holding Trump accountable for crimes actually supports, not attacks, our system:

The preeminence of the rule of law is central to the integrity of our democracy.

It must be applied equally without fear or favor.

The indictment of a former President is a serious moment for the nation.

A jury of Donald Trump’s peers will now determine his legal fate.

Ammar Moussa, a representative for the DNC, highlighted how no one in the GOP establishment seems to be on the side of actual law and order, telling the New York Times, “No matter what happens in Trump’s upcoming legal proceedings, it’s obvious the Republican Party remains firmly in the hold of Donald Trump and MAGA Republicans.”

Some key points and facts to keep in mind 

As the two sides debate whether this is the beginning of the end for democracy, or the end of the beginning for accountability, there are some basic facts and concepts that are helpful to consider around the case. I’ve listed a few of them here.

We don’t yet know the charges. Because the indictment is sealed, all we know is that there are 34 counts in it. That’s a lot, certainly, but recall that there were a dozen or so instances of falsifying business records once all thoe reimbursement checks signed by Trump are counted. Are there also conspiracy charges? Was it tax evasion? Campaign finance violation? We likely won’t know until Trump’s arraignment on Tuesday. But here’s the thing: Republicans are currently railing against charges that they can’t even identify. 

It was the Mueller investigation that first surfaced these crimes. Mueller and his team found evidence of the crime while searching for a way into the Trump inner circle. The report states,

During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential wire fraud and FECA violations pertaining to Michael Cohen. That evidence was referred to the U.S. Attorneys Office of the Southern District of New York and the FBI’s New York Field Office.

Cohen was eventually charged and famously decided to flip on Trump, and he did time in jail in part for violating federal campaign finance laws.

It’s actually Bragg’s job to prosecute this crime. Even if this is a straightforward case of falsifying business records to help swing an election—which in another universe would be a very big deal, but here we are after a failed insurrection and espionage attempts—there are still some inescapable truths. One is that Michael Cohen went to jail for doing what Trump told him to do. Justice requires that bosses shouldn’t skate free while leaving their underlings to pay the price. 

Another is that all members of a conspiracy should be prosecuted for the same crime no matter their level of involvement. If Trump knew about and agreed to the plot to falsify records and cover up the hush-money payments to Daniels, then he should face the music too. Failing to prosecute Trump for being part of the same conspiracy would place him above the law.

The Feds didn’t prosecute Trump—but not because he’s innocent. Republicans often forget that it was Trump’s Department of Justice under Bill Barr that put Cohen behind bars. Then, it was that same DoJ that made a conscious decision not to prosecute Trump himself, because department policy says you can’t indict a sitting president. Once he left office, Trump was fair game, but as Prof. Joyce Vance has pointed out, a special rule in the DoJ’s Manhattan office may have complicated that. 

Specifically, that rule says that to use a cooperating witness like Cohen, he has to be willing to divulge all of the criminal activity he is aware of—which Cohen reportedly wasn’t willing to do because it might, for example, sweep in other people such as family members. Without Cohen as a usable witness, the feds likely had no solid case against Trump. But Bragg, as a local prosecutor, wasn’t bound by these Department rules, and so it absolutely made sense for him to pick up where the Feds couldn’t take things. The only question was whether Bragg felt he had a strong enough case against Trump to proceed. Apparently he has concluded that he does.

Business records falsification is commonly charged in Manhattan. Trump isn’t being singled out. In fact, falsifying business records is one of the most common white collar charges brought in New York City. Trump shouldn’t be able to dodge accountability simply because he is wealthy, famous or a politician. Republicans should be asked whether they generally think people who intentionally make false business record entries should be charged with crimes, and if so, why Trump should get a pass when others don’t. 

Their antisemitic rhetoric needs to be called out. Finally, we need to speak out against this “Soros-backed” nonsense. Donald Trump, Don Jr., Ron DeSantis and others have all leaned in on the idea that Alvin Bragg was “bought” by financier George Soros. This is a deliberate distortion to suggest the prosecution is part of some vast Jewish conspiracy, and they are intentionally playing with fire by repeating and amplifying it.

The facts are these. Bragg and Soros have never met and have never spoken. Soros has never contributed directly to Bragg. Soros supported a progressive criminal justice group called “Color of Change” with a donation of $1 million, in line with his general practices for years, which in turn supported progressive prosecutors around the country as part of efforts to overhaul the criminal justice system. That group spent around half a million in direct mailers, a ground campaign, and voter turnout on behalf of Bragg—around 11 percent of its budget in that election cycle. Soros was just one of many large donors, which included members of the Pritzker family and the Beastie Boys hip-hop group.

Why do the first indictments have to be over this?

Liberals and progressive collectively feel a bit itchy about the first indictments of Trump, which reach way back to the beginning of his illegal activities as a candidate. They aren’t aimed at his more recent and far more serious crimes of attempting to obstruct Congress, interfering with an election in Georgia, and obstructing recovery of top secret classified documents. The discomfort is understandable precisely because it’s clearly easier for the GOP to dismiss the Bragg prosecution and Manhattan case as trivial and therefore politically motivated.

But the GOP may be committing a strategic mistake. Now that they have blasted the indictments, before even seeing them, what will they say when the next set of indictments drop? 

Pence’s argument that it is an “outrage” to prosecute Trump for campaign finance violations committed years ago won’t work when it comes to election interference and espionage. Carlson’s claim that bringing charges for falsifying business records is an “assault on our system” that is “much greater than anything we saw on January 6th” will fall flat when the next set of charges are actually for what we saw on January 6th.

The higher up these charges go in severity, the weaker the GOP’s main argument gets. Democracy requires that the people at the top not stand above the law, but that becomes especially true when the crimes they have committed are so monumental in scope. 

In short, the GOP may have to change its tactics and rhetoric significantly as further indictments drop, always scrambling to justify the unjustifiable. But Democrats can simply hold to the same principle they have already articulated. Accountability matters, no matter who or how powerful you are. And it especially matters when you’ve done something very bad and very illegal, as we will very likely see in later indictments.