Trump’s indictment has turned every American voter into a juror
TO STORE ALL the accusations against Donald Trump would require a new wing of the Library of Congress. There are the allegations made against him before he became president, some of which were false. Then there are the ones from his four years in the White House, which resulted in two impeachments. Since leaving office, he has become the first former president to be indicted on criminal charges. There is the Manhattan case, which turns on falsifying business records, the Mar-a-Lago case, which concerns the handling of classified documents, and a looming case in Fulton County, Georgia, which is about an attempt to overturn the state’s election result. You may recall that Mr Trump also lost a defamation case against a woman who accused him of sexual assault.
None of these compares to the latest indictment, issued by the prosecutor, Jack Smith, on August 1st. If proven, it will be the thing that Mr Trump is remembered for. Lincoln freed the slaves, Reagan won the cold war, Trump went to prison for trying to steal an election.
That charge is the most serious political crime it is possible to commit in a democracy. The allegation, laid out in detail, is that he plotted to overturn the 2020 election results, knowing his claims of fraud were false. Making up evidence, coercing officials and trying to sabotage the constitutional process for certifying election results amounted to a conspiracy against the United States and its voters. In some countries it would be called treason.
Mr. Trump’s lies, as set out by Mr Smith, were elaborate. Mr Trump said that there were 205,000 more votes than voters in Pennsylvania; that Michigan had seen a “suspicious vote dump”; that 30,000 non-citizens had voted in Arizona; that Nevada had seen tens of thousands of fraudulent votes; that voting machines had changed votes from Trump to Biden. None of it was true. An adviser to the Trump campaign described it as “all just conspiracy shit beamed down from the mothership”.
In the face of all this, Mr Trump will make a political defence and a legal one. The distance between them is notable. The political defence is to accuse the “Biden Crime Family” of weaponising the Department of Justice (DoJ), and to compare the prosecutions to actions taken by Nazi Germany. As the cases proceed through the courts, Mr Trump and his supporters will attack them, in a bid to portray all parts of the justice system as stooges of the deep state.
Lots of his supporters would agree with that. Fresh indictments seem to benefit Mr Trump politically. He uses them to fundraise, and several of his cowed opponents in the Republican primary see them as another opportunity to demonstrate their fealty to him. He remains overwhelmingly likely to be the next Republican nominee.
Legally, the defence may well be that, yes, much of the stuff in the indictment is true. The question is whether any of it is a crime. Under a longstanding convention, the president cannot be prosecuted by the DoJ, and since Mr Trump was still president until January 20th 2021, the case should be tossed out. His team will claim that one of the statutes Mr Smith relies on, which was introduced after an accounting scandal, is being misused. They will also argue that Mr Trump genuinely believes he won and that, if he was not lying, he was not a conspirator.
The legal wrangling could be involved, but that is for the courts to sort through. Yet, however the case turns out, their role is vital in two further ways. The first is to show that nobody is above the law. Some conservative critics of Mr Trump argue that, as a candidate, he should never have been prosecuted, because doing so puts courts and voters in a head-on collision. This is backwards. Prosecuting Mr Trump, despite all the pain it will bring, is the least bad option for American institutions. To duck a prosecution because it is politically awkward would be to set a precedent that presidential candidates enjoy impunity.
The other benefit of the trial is that a courtroom is a place where reality counts. Mr Trump has thrived by defining the truth as whatever suits his interests, and then accusing anyone who disagrees with him of treachery. In court, truth means something different and lies are disqualifying. There is a value in trying the accusations against Mr Trump and seeing if they convince a jury.
Yet the courts will not determine the next president, because of the way American justice works. In Brazil Jair Bolsonaro, a former president, has been banned from standing for election for eight years for his part in a less-developed scheme than the one Mr Trump is accused of carrying out. America, by contrast, has no statute that can bar someone convicted of a crime from running for office. A candidate could run from prison.
That is not what is likely to happen to Mr Trump, though. Even with Mr Smith’s slimmed-down charge sheet, which currently excludes co-conspirators, it will be hard to wrap up such a high-profile case before American voters pick their next president in November 2024. That is because there will be appeals, perhaps all the way to the Supreme Court. The courts may establish some facts, but it will be for voters to decide what to do with them.
The next phase of the trials of Mr Trump is therefore political. That piles a heavy responsibility on those Republican politicians who privately acknowledge that he is unfit to be president. Ever since Mr Trump entered presidential politics in 2015, his opponents within the Republican Party have hoped that something or someone—primary rivals, the Republican establishment, Robert Mueller, impeachment, Republican donors, the courts, anyone—would spare them the responsibility for condemning Mr Trump and paying the price by incurring the anger of his voters. But there is no one else left and the time for them to act is running out.
They and the rest of America need to be clear-eyed about the danger here. It is not just that the country is heading for an institutional crisis and that, having tried once to steal an election, Mr Trump may try again and this time perfect the operation. It is also that Mr Trump could well win the next election fairly. At which point, Americans will collectively have decided to re-elect a man who does not cleave to the most basic value of a self-governing republic: that the loser of an election willingly surrenders power. What will take place in America over the next year will test the courts and Republican politicians. It will also be a fundamental test for voters. ■