How should we think about the criminal case against Donald Trump?
By now, with controversy buzzing for the past week about Trump’s indictment and arraignment, firsts for any former president, the details of the case are familiar: in the process of paying hush money to porn star Stormy Daniels, with whom he’d had an affair, Trump’s company processed his checks to his lawyer to make the payoff as mere “legal expenses.” This falsification of business records is central to the charges he’s now facing. Normally a misdemeanor, in this case Trump is being charged with a felony, on the basis that he had allegedly committed this crime for the purpose of carrying out a second one.
For the past week, the indictment — as well as several other cases that could lead to possible indictments against the former president — has triggered consternation and questions: Is the legal basis of the case sound? Is this case, of all possible cases, really the one to lead with in prosecuting a former president? Should any of this even be happening at all? Or will it actually empower the president, galvanize unrest, and set a dangerous precedent that will be used by Republicans against future political opponents?
There’s a basic principle at play here: if Trump has been credibly accused of a crime, he should be treated like everyone else who’s been in his position. That means he should be tried and, if found guilty, punished in accordance with the law. For far too long, the United States has been a country where the poor and middle are crushed by an ultra-punitive criminal justice system for even the most minor of crimes, while the rich, famous, and powerful are allowed to breezily skate over those same laws. While the most desirable outcome is a system that doesn’t lock people up at such high numbers, the bare minimum of fairness means that, while it exists, the elite should face the same accountability that the rest of us do.
Is Trump credibly accused of a crime? Few but his most fanatical supporters would argue that he hasn’t been. As the indictment makes clear, what Trump allegedly did was disguise payments from his business to attorney Michael Cohen as “legal expenses” and “payment for services as rendered,” all as part of a nonexistent retainer agreement — when it was really to pay off Daniels and keep her quiet as Trump ran for president.
You might say that these allegations seem trivial. Maybe so, but the Manhattan district attorney regularly prosecutes such small potatoes. Among the examples pulled up by analysts at Just Security — some of which detail some serious theft and fraud — are people accused of breathtakingly petty crimes, like someone committing unemployment-benefits fraud worth a mere $3,000; another lying on a food-stamp application that another person lived with her; and a woman returning items that she never bought for store credit, which she then used to buy more products. If these people are going to face the ignominy of criminal prosecution, it makes no sense to give Trump a free pass.
This was the same reason that there was little to object to in Trump’s other legal troubles over his mishandling of classified documents, even as that case was both relatively trivial (in light of rampant overclassification of government documents) and irrelevant to the many pressing crises facing the United States. But given how many low-level classification-law violators had had their lives ruined by the US government’s overzealous prosecutions of leaks — including under Trump, sometimes for even accidental or minor exposure of secret documents — the former president shouldn’t be treated any differently.
We should separate this point — that by being prosecuted for very real, credible allegations of falsifying business records, Trump is facing the same kind of treatment regularly meted out to people who aren’t former presidents — from the very real criticisms of the indictment, which are entirely different issues. Those criticisms include the fact that to make this crime a felony means identifying a separate crime that it was in the service of.
Prosecutions like these certainly do happen, but they’re relatively rare — as are convictions in such cases. Besides this, there’s the fact that a New York prosecutor has never brought forward a federal election law–related case before, and that Manhattan district attorney Alvin Bragg revealed little in the indictment backing up the alleged election-law violations central to making the case a felony. All of this only fuels claims that, rather than upholding the letter of the law, Bragg is engaging in a politically motivated prosecution against his party’s leading election opponent — as does the fact that he’s treated each check filed by Trump as a separate felony count, seemingly to maximize the potential jail time Trump would face.
This is why many commentators, even anti-Trump ones, have been “underwhelmed” by the case brought against him this week. It’s hard to find a single pundit or legal expert who isn’t in some state of uncertainty. At best, they’ve cautioned those following the case to hold off judging it based on the weaknesses of the indictment, as prosecutors may be holding more cards that they’re yet to reveal.
But whatever its faults, this case is just one part of a much broader legal peril facing Trump right now, one that’s on potentially much firmer ground than this attempt to slap Trump with a felony for lying about the checks he used to pay off his mistress. Though we can’t know yet if they’ll end in indictments, the cases being investigated by prosecutors in Georgia and the Department of Justice concerning the former president’s attempts to overturn the election he lost are both much more serious and solid than the one grabbing headlines this week. Remember Trump’s taped instructions to a Georgia elected official to “find 11,780 votes”?
They’re also far more consequential for the country as a whole: the threat of criminal prosecution needs to exist as a deterrent against future political leaders trying to subvert democracy, as is the case in Bolivia and, now, Brazil. In an ideal world, these kinds of deterrents would exist for a host of other elite crimes, including the many illegal wars, military attacks, and human rights abuses that every president engages in almost as a matter of course. Perhaps this precedent-shattering event may crack open the door to this future.
There’s good reason to ask whether, in light of those much more significant cases, this should’ve been the case that produced that break from precedent and the very first indictment of a former US president, especially one whose popularity has often been powered by a sense he’s battling a hostile political establishment — and whether Bragg might have overshot by trying to upgrade it to a felony. But these are questions of legal strategy, and we should separate them from the broader question of whether Trump, given the past cases against poorer people accused of pettier crimes, should have been prosecuted at all, which he clearly should’ve.
Critics of the indictment do have a good point that its liberal supporters should bear in mind, though. This probably will open a Pandora’s box that will see Republicans similarly prosecuting Democratic politicians, something they, like those prosecuting Trump now, won’t have to invent reasons for, given the corruption and criminality that pervades all of Washington. These supporters should ask themselves if they’re ready to accept their favorites also being held to the same legal standards that ordinary Americans have to live under. Democratic partisans may find out that they’ll have to pay some serious costs to live in a world where the law applies equally to all.