The Trump indictment and America's political order

CHICAGO — The indictment of a former president is unprecedented in the United States. But Americans, and the world, should get used to it. It was only a matter of time before a US president or former president found himself in legal jeopardy.

After all, in 1999, President Bill Clinton was held in contempt of court for what was essentially obstruction of justice, including lying under oath (he barely avoided being indicted for perjury). Similarly, Clinton’s two predecessors, George H.W. Bush and Ronald Reagan, were implicated in an illegal scheme to trade arms for hostages with Iran, though neither was prosecuted.

Richard Nixon almost certainly would have been prosecuted for Watergate-related crimes and bribery after he resigned from office, had he not been pardoned by Gerald Ford. And some people believe that George W. Bush or his subordinates should have been prosecuted for crimes related to their execution of the “War on Terror”.

Still, the normalisation of the idea that a president could be prosecuted is only a few decades old. The US founders did not expect the executive branch to police itself, so they lodged the impeachment power in Congress. But three things have changed the impeachment calculus since the founding era.

First, as the party system developed, presidents eventually became the de facto heads of their parties. Second, the presidency became enormously powerful over the course of the twentieth century, creating new risks that a president would use his administrative power to suppress political dissenters and partisan challengers. And, third, as the executive branch became bureaucratised and professionalised, many began to imagine that federal law enforcement could operate independently of the president and his aides — that it could investigate them or resist their pressure to investigate political opponents.

But this transformation has created problems of its own. Because the president appoints the head of the Department of Justice, all federal law enforcement decisions can ultimately be attributed to him and his party. This means that any criminal trial of a former president or someone who seeks to be a president (Trump is both, of course), is unlike an ordinary criminal trial and more akin to a political contest, a kind of proxy campaign.

President Joe Biden and his attorney general, Merrick Garland, have thus taken pains to distance themselves from the current investigations of Donald Trump. But Trump and his allies have reminded everyone that Biden appointed Garland and that Garland appointed Special Counsel Jack Smith. Moreover, everyone knows that the prosecution is politically convenient for the Democrats, even though it also appears to be well-intentioned and fully justified.

The prosecution must thus prove not only that Trump committed crimes, but that the decision to prosecute is beyond reproach. To assuage any skepticism on the part of jurors, the judge, or the public, prosecutors will bend over backwards to make a strong case and give the defendants the benefit of the doubt on procedural questions. We are already seeing this in the unusually detailed indictment that Smith released to the public last week. In the interest of transparency, the special counsel has sacrificed some of the element of surprise that prosecutors normally enjoy.

To counter the prosecution’s effort to make the trial as orderly, fair, and decorous as possible, Trump’s lawyers will try to turn it into a circus, seizing on every opportunity to impugn the government’s motives and, above all, to slow things down. Do not expect a tightly plotted legal drama on the model of Twelve Angry Men. We are more likely to get “Waiting for Godot” with elements of My Cousin Vinny.

Delays serve Trump’s interest, because, as the trial drags on, his lawyers will argue that the proceedings interfere with his presidential campaign. Any attempt by prosecutors to speed things up will be met with cries of unfairness. In the unlikely event that Trump is convicted before the primary elections for the Republican Party nomination begin, or even the general elections, Trump’s lawyers will argue that he should not be forced to campaign from a jail cell, as that will interfere with the people’s right to elect a president of their choice.

While the socialist Eugene Debs did run for the presidency from prison in 1920, he did not belong to a major party and would not have won even if he had been free. The same cannot be said for Trump.

Indeed, let’s imagine that Trump is elected — hardly an unlikely outcome for a leading Republican candidate who is challenging an unpopularoctogenarian incumbent. A criminal trial for an elected president (also unprecedented) could be blocked by the courts if they are worried that it would interfere with the president-elect’s ability to prepare for the presidency or ability to serve. And if he is convicted and sentenced, what then? Would the nuclear football be handed to Trump through the bars of his cell?

Most likely, the courts would suspend his sentence (or the trial, if it is still not yet complete) until the completion of his term in office. That would virtually guarantee that Trump, with nothing to lose but the prospect of old age in a prison cell, would spend his second term using every means available to prevent his sentence from being carried out. Biden would need to consider pardoning Trump or commuting his sentence to avoid a constitutional crisis and allow the lesser evil of a second Trump term in which he merely continues to corrupt the presidency and mismanage the country.

The machinery of the rule of law is a poor fit for electoral politics. Unless Trump’s star fades among Republicans, the trial could end up helping him or further damaging the justice system. Worse, these kinds of legalised political contests could become a regular feature of politics long after Trump has left the scene.

Eric Posner, a professor at the University of Chicago Law School, is the author of “How Antitrust Failed Workers” (Oxford University Press, 2021). Copyright: Project Syndicate, 2023. 

www.project-syndicate.org