On the Indictment of Donald J. Trump

 

On the Indictment of Donald J. Trump

April 1, 2023

 

On Thursday, March 29, 2023, Manhattan District Attorney Alvin Bragg indicted former president Donald J. Trump for various alleged crimes. The indictment is not yet publicly available, so we don’t know the details of the charges DA Bragg has brought against Trump. News reports say the indictment charges thirty counts of alleged crimes related to fraud in the use of business records. The charges apparently relate to hush money Trump paid to Stephanie Clifford, known as Stormy Daniels, the name under which she worked as a porn actress. Trump’s former enforcer Michael Cohen has already been convicted of essentially the same crimes. The court papers in his case call Donald Trump “Individual-1” and strongly suggest that the only reason he wasn’t charged as a co-conspirator is that he was president at the time. We do not yet know if any of the crimes alleged in the indictment are felonies, as under New York state law simple falsification of business records is often only a misdemeanor. News reports say Trump will surrender to New York authorities on Tuesday, April 4, 2023, for arraignment.

District Attorney Bragg’s indictment of Trump is the first time in American history that a sitting or former president has been formally indicted for criminal conduct. Richard Nixon would have been but for the pardon President Ford gave him. That’s as close we we’ve come to an indictment of a president. It had never happened before last Thursday. As expected, the indictment has set off a barrage of accusations against Bragg from the Trumpist right- wing of American politics. Trumpists say that this is a political indictment. They usually call it a “witch hunt,” by which I guess they mean something that is illegitimate and cannot produce any proper and justifiable result. They say Bragg is backed by George Soros, a longtime rightist whipping boy, as if that actually mattered. The attacks on Bragg reek of anti-Semitism, Soros being Jewish, and of racism, Bragg being African-American. As I write here on April 1, none of the protests against the indictment has turned violent. We can only hope and pray that none never does. What we know about how this indictment came about indicates that Bragg followed routine New York criminal law and procedure in procuring it. A grand jury heard evidence about Trump’s conduct for months. It voted to indict Trump. There is nothing overtly political about the indictment.

Yet Trump’s supporters say it is political, so we must consider for a moment what it would mean if Bragg’s motive in obtaining the indictment were political. It surely has happened that prosecutors have undertaken criminal investigations of political opponents in an attempt to discredit them with the public. Yet such a political motivation behind a criminal investigation has no effect on what that investigation finds, or at least it doesn’t if the prosecutor doesn’t manufacture otherwise nonexistent evidence. There is no hint that Bragg has done any such thing in his case against Trump. The facts an investigation discovers are simply facts. They either constitute a criminal violation or they don’t. Whether or not they do has nothing to do with the prosecutors motive for discovering them.

Still, any decision to indict Donald Trump will inevitably have political ramifications. That is true whether the decision is to indict Trump or not to indict Trump. Trumpists say the decision is political because it comes from a liberal jurisdiction and is brought by a liberal prosecutor who is a Democrat not a Republican. If Bragg had decided not to charge Trump, those of us on the left side of American politics would say Bragg refused to indict simply for fear of the public consequences of an indictment. Trump is unavoidably a political figure. He has been the country’s president, and he is running for election to the presidency again. His movement is political. His base of rabid rabblerousers demand political action. There is no way to remove any decision about indicting trump from politics. That doesn’t necessarily mean that Bragg has acted from political motives, as irrelevant as it would be if has. It just means that his decision will unavoidably be seen as political, and it will have political consequences.

Trump is the first American president to be criminally indicted. He is indicted, however, not as a former president but as a private American citizen. He has all of the constitutional rights and protections the rest of us have. He has a right to due process of law. As a legal matter, though for many of us not as a practical matter, he is presumed innocent. He cannot be made to testify against himself. He has a right to a jury trial if he wants one. I trust that the New York prosecutors handling Trump’s case are fully aware of Trump’s constitutional rights and will not intentionally or knowingly violate them. After all, they will want any conviction they get to stand up on appeal.

This is, however, no routine criminal indictment. Given who has been indicted it cannot be routine. It is the indictment of a president, and that has never happened before. The public virtually never hears of routine criminal indictments. This indictment is front page news all over the world. Millions of Americans will have an emotional reaction either applauding it or condemning it. Far too few Americans will consider it calmly and rationally. Far too few Americans will be content to let the legal process run its usual course. Far too few Americans will accept the result of that process, whatever that result may be, as legitimate. These truths are unfortunate, but they are absolutely true nonetheless.

There are other issues to consider here. Many people say the charges Bragg has brought against Trump are “small potatoes.” They do indeed seem a bit trivial compared to the possible charges Trump faces under the law of the state of Georgia and under federal law for attempting to overturn the results of a free and fair presidential election and stirring up a seditious mob to attack the United States Capitol in one last, desperate attempt to hold onto the power the American electorate had taken from him. Some wish more serious charges has been brought either in Atlanta or in Washington, DC, first. Yet all of the criminal investigations of Trump are independent of each other. Each proceeds at its own pace. Bragg was ready to indict Trump before with the Fulton County DA or the Justice Department was. So he indicted him. That’s how the system works.

It is also important that we understand what an indictment is and what it is not. An indictment is an accusation only. It plays in criminal law the role a complaint plays in civil law. It initiates a criminal court proceeding. True, an indicted person gets arrested and someone served with a civil summons doesn’t. Still, neither an indictment nor a complaint establishes anything in itself. From them we learn what one party to the case alleges. We then can prepare our defense against those allegations. Remember also, that nearly all criminal and civil court cases never go to trial. Most parties to civil litigation settle their case before trial. Most criminal defendants plead out to lesser charges and thus avoid a trial. Our court system couldn’t possibly function if these things weren’t true. It would be overwhelmed by the number of cases it had to handle. Commentators say it is unlikely that Trump will cop a plea in the case DA Bragg has brought against him. That’s probably correct, and Trump has every right to take the case to trial. What a circus such a trial would be is another matter, but I suspect we’re in for one.

There is also another significant issue surrounding Donald Trump’s legal peril. It is whether any person is above the law or not. With regard to a president of the United States, the answer to that question, sadly, depends on whether the president in question is in office or is a past president no longer in office. The US Department of Justice has a most unfortunate policy against ever indicting a sitting president for anything. This policy says that the only remedy for criminal conduct by a sitting president is impeachment by the House of Representatives and conviction by a two-thirds majority in the Senate. Impeachment may not technically be a political proceeding. It is, in theory, beyond politics. Yet in practice it is unavoidably political not legal. Only three presidents have ever been impeached. The impeachments of Andrew Johnson and Bill Clinton were frivolous and clearly political. In the two impeachments of Donald Trump, the evidence clearly showed his guilt. Yet in the first impeachment all of the Republicans in the Senate voted from political considerations not legal ones. In the second impeachment, a few Republican senators voted to convict, but the others voted once again from political considerations not legal ones. Therefore, Trump was acquitted in both cases. No president has ever been convicted in an impeachment proceeding, and it is hard to imagine that any president ever will be. Impeachment Is not, in practice at least, an adequate remedy for criminal conduct by a sitting president. The DOJ really should repeal its rule against indicting one.

The matter is different with regard to a former president. As a legal matter, a former president is just an ordinary citizen with the same legal obligations and protections as the rest of us have. A former president has no unique legal standing. Yet some contend that a former president should not be criminally indicted simply because a former president is a former president. There is no legal basis for that contention whatsoever. Indeed, the foundational principles of our legal system dictate the exact opposite. We claim to be a country that operates under the rule of law. We say we are governed by law not by people. People make the law of course, but once law is established, in theory at least, it operates independently of the political wishes of any person. The rule of law is, however, meaningless unless it applies to each and every person equally. That means there must be no one above or outside the law. Neither must there be anyone beneath the law, but that is a different issue and one our country still struggles with. Any rule or practice that says a former president cannot be indicted for criminal actions puts that person above the law. It therefore violates those foundational principles on which our country is based.

What conclusions can we then draw from the current indictment of former president Trump? I draw three conclusions from it. One is negative. The reaction against the indictment by the right wing of American politics shows that people on that side of our politics understand next to nothing about the rule of law and care about it even less. Their reaction against the indictment, and their attacks on DA Bragg, show that the proper functioning of our legal system means nothing to them. Someone has said bad things about their great hero The Donald. To them, those things must be false, and the person who said them must be evil. We get kneejerk political reactions to the indictment not informed and considered opinions. It is most unfortunate that we do.

My other two conclusions are positive. One is that the American legal system seems to be working properly. DA Bragg appears to have followed routine procedure in investigating and charging Trump. Were his motives political? I don’t know. I do know that it doesn’t matter whether they were or not. What matters now are the facts and the law, and neither of them is political. Bragg worked through a properly convened grand jury and did so in accordance with New York state law. There is no obvious basis for claiming that anything was wrong in the process that led to Trump’s indictment.

The most important conclusion we can draw from this indictment is that, indeed, no one is above the law in this country (except, unfortunately, a sitting president while he or she is in office). That Donald Trump was once president and wants to be president again in no way shields him from the proper operation of the criminal law. The law applies to him in the same way that it applies to you and me. It took so long for anyone to indict Trump for anything that one was tempted to think that state and federal prosecutors considered him to be above the law, to think that to indict him for anything would be somehow improper and impermissible. We now see that, at least in New York state, that is not the case. We can only hope and pray that the other investigations into possible criminal conduct by Donald Trump will likewise understand that there is no legal barrier to indicting him and that political considerations must not enter into the process. May it be so.