Now that he’s been indicted, Trump is entitled to a presumption of innocence, and a fair trial. Those are bedrock principles of the U.S. legal system.
Trump “has a lot at stake” in the case, a New York Times writer says. “He could, in theory, go to prison for years.” But there are some big ifs. Will a jury convict him? Would a judge imprison him? And can anything dent his political power?
The Seattle Times carried his article on the front page of its print edition for Sunday, June 11, 2023. It continues,
“If he winds up in the dock in front of a jury, it is no exaggeration to suggest that American justice will be on trial …. History’s first federal indictment 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 … or the moment when a vast swath of the public becomes convinced that the system has been irredeemably corrupted by partisanship.”
Predictably, Trump is telling his followers Biden and Merrick Garland, the attorney general, orchestrated the indictment. Many Republican politicians are repeating that falsehood. The special counsel operates independently, there’s zero evidence of any intervention by the White House or attorney general, and the indictment spells out exactly what Trump did and the specific laws it violated.
The New York Times says, “Few if any of them bothered to wait to read the indictment before backing Trump’s all-caps assertion that it was merely part of the “GREATEST WITCH HUNT OF ALL TIME.” The problem with that is a prosecutor can’t get an indictment unless he has evidence that a crime was committed.
In addition, Jack Smith, the prosecutor overseeing the case, didn’t indict Trump; a grand jury of ordinary citizens did, based on the evidence presented to them. Given that federal rules require grand juries to have at least 16 jurors, and they can have up to 23 jurors (see rule here), and the case was presented to a grand jury in southern Florida where Trump lives, the odds there were no Republican voters on that grand jury are effectively nil.
This detail — that ordinary citizens, some of them Republicans, indicted Trump — is overlooked or intentionally omitting by those accusing Biden, Garland, or Smith of indicting Trump to eliminate a Biden political rival. What’s more, this indictment won’t eliminate him, because a trial probably won’t happen before the 2023 election, and even if it does and he’s convicted, current polling strongly indicates that Republican voters would vote for him anyway.
This wasn’t the case in 1974, the last time a president was in serious trouble. Once it was established that Nixon ordered the Watergate coverup, his own party urged him to resign, and Republican senators warned him they would not have his back in a Senate impeachment trial. What has changed is GOP politicians are no longer committed to our democracy, or principled, and the Republican voter base sweeps aside facts and truth. Only political power matters to them now.
David Jolly, an ex-congressman from Florida who quit the Republican Party, said, “Their current weaponization narrative is dangerous and destabilizing, but seems to reflect the party’s early consensus [on indicting Trump]. If they don’t pivot soon to due process and faith in the system, I think we could have very dark days ahead. I do worry.” (Seattle Times, 6/11/23, p. A6.)
Let’s talk about the system. The Constitution is a social contract. A “social contract” is an agreement we make with each other as to how we’re going to live together (see a more formal definition here). Even though the basic document was written more than 200 years ago, and all the citizens to whom it originally applied are long dead, the Constitution is still an active social contract because the present generations of Americans continue to live by it. Without that, it would be mere words on paper of no practical significance, just a historical curiosity.
Part of this social contract is that we all agree to abide by our society’s laws. There’s a court system and legal process for determining whether someone has violated them, and maintaining the social, economic, and political order we’ve constructed for ourselves by enforcing its rules.
The problem is Republicans are increasingly refusing to go along with the social contract, and implicitly threatening to withdraw from it altogether. The obvious concern right now is that putting Trump on trial will exacerbate and accelerate that trend. On the other hand, exempting Trump from our laws because he has a large political following would subordinate the rule of law to raw political power.
That’s what destroyed Germany’s constitutional system in 1933 and led to establishment of a dictatorship. When the Nazis gained control of the Reichstag, they passed an “enabling act” that empowered Hitler to override the legal system (read details here). Trump has demonstrated he doesn’t respect our laws, won’t abide by them, and his party is attempting to override our social contract to achieve their political goals. Those goals include demonizing and marginalizing large segments of our population including racial minorities, LGBQT people, and adherents of non-Christian religions.
It’s easy to say the rest of us have a right to enforce the law and uphold the social order, but that’s easier said than done when a third of the population is unwilling to play by the rules. It’s even more complicated when they reject facts and operate on lies and fantasies, because that means you can’t reason with them. This is where we are today.
This happened once before in our history. To really understand the Civil War, you need to realize it wasn’t just about slavery. Abolition also threatened the Southern economy and a culture based on the South’s racial order. Southerners saw the northern victory in the 1860 elections as an existential threat to their way of life and sought partition. The Confederates never attempted to conquer the North; their war aims were limited to separation.
Lincoln could have accepted partition, but didn’t, and brought the South back under the Constitution with military force. Today, the disagreeing factions are geographically mingled; so how would separation, if it happened, work? When India partitioned in 1947 to separate its Muslim and Hindu populations, there were mass migrations and “large loss of life” (read details here). But in America’s current social fissuring, Republicans seem to be seeking dominance rather than partition. That makes our situation more akin to Germany’s than India’s.
Assuming the facts recited in the indictment are backed by evidence, as they surely are, Trump’s law violations imperiled top-level national secrets and endangered our national interests. These are serious crimes that technically fall under the Espionage Act, although he’s not accused of spying for a foreign power. His chief culpability lies in refusing to surrender the documents, lying that he didn’t have them, and trying to hide them from the government.
That’s also what differentiates his retention of classified documents from the retentions by Biden and Pence, both of whom probably did so inadvertently, surrendered them on demand, and cooperated with government authorities in returning them to government custody. They also did not share classified information with unauthorized, as Trump allegedly did.
The Biden administration could have accepted this by not appointing a special prosecutor, but that would play into a larger Republican effort to exempt themselves from our nation’s laws in their pursuit of political power. That factor raises the stakes. If there’s going to be a confrontation over obedience to our laws, it’s better if it happens now, in a courtroom, when it’s still possible to save the rule of law. If we don’t pursue it now, there’s likely only two paths forward, either partition or dictatorship.
The New York Times article spells out what a Trump government unrestrained by laws would be like. In his first term, he sought to “weaponize the Justice Department” by pushing his attorneys general “to prosecute his perceived enemies and drop cases against his friends and allies, making no pretense that he was seeking equal and independent justice.” Beyond that,
“He chipped away at so many norms during his four years in office that it is no wonder institutions have faced credibility problems …. [and] he does not respect the boundaries that constrained other presidents. Since leaving office, he has called for ‘termination’ of the Constitution so that he could be returned to power without waiting for another election and vowed that he would devote a second term to ‘retribution’ against his foes while pardoning supporters who stormed the Capitol on Jan. 6, 2021, to stop the transfer of power.”
(Seattle Times, 6/11/23, p. A6.) This is disturbing, but with Trump out of office, not a clear and present danger. It would become that if he were elected again and allowed to serve. (There’s been recent speculation that if he’s convicted of these charges, he would be impeached and removed, but I don’t see that happening given the current mindset in the Republican Party.)
The article does see a clear and present danger in the distrust that Trump is sowing against our law-upholding institutions and asks, “Will that result in lasting damage to democracy?” Here, the writer quotes a constitutional law expert (read his profile here) who says, “It’s messy and uncomfortable for the generation living through it, but the system is durable enough to win out.” (Id.)
I’d like to think so, but there’s no precedent in our history for a Trump; and while he may not be a Hitler clone, it’s not clear that a large political movement which rejects the rules of the existing order won’t fracture it. What is clear is America’s social contract is being stretched dangerously close to a breaking point for a second time in our history.
Against that backdrop, it’s reasonable to argue that letting Trump get away with his lawlessness would embolden this movement further, and our best hope of taming the malevolent forces he has unlashed lays in holding him to the rules, and his followers to the social contract.
As you can see, I’m thinking about this on a societal scale, because ultimately this trial isn’t just about what happens to Trump, but also about what happens to us.