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Trump Indicted: Three Things to Keep in Mind

The former president’s problems are now legal, not political—and the rules of the courts are stricter than those of politics.
March 30, 2023
Trump Indicted: Three Things to Keep in Mind
WACO, TEXAS - MARCH 25: Former U.S. President Donald Trump looks on during a rally at the Waco Regional Airport on March 25, 2023 in Waco, Texas. Former U.S. president Donald Trump attended and spoke at his first rally since announcing his 2024 presidential campaign. Today in Waco also marks the 30 year anniversary of the weeks deadly standoff involving Branch Davidians and federal law enforcement. 82 Davidians were killed, and four agents left dead. (Photo by Brandon Bell/Getty Images)

On Thursday, the office of Manhattan District Attorney Alvin Bragg secured a grand jury indictment of former President Donald J. Trump. Its contents remain sealed. That hasn’t stopped commentators from feverishly debating the pros and cons of this historic step. Is Bragg, an elected Democrat, being fair to Trump? Are the (so far unknown) charges sufficiently serious to justify prosecuting a former president? Who benefits more politically, Democrats or Republicans? And what does this stunning turn of events mean for the office of the president itself?

All of these questions are understandable and serious. But they miss three critical points.

The first is that we are in uncharted—and risky—waters, but not because of the Manhattan grand jury. We are here because of the actions of Donald Trump, which were unprecedented in pushing the guardrails of the rule of law in thousands of ways. So extreme were his actions that they prompted a special counsel investigation into his campaign’s coordination with the Russian government in the 2016 election and his subsequent eleven potential acts of obstruction of that investigation, two unrelated impeachments, countless civil lawsuits and investigations, and five separate ongoing criminal probes—three by federal prosecutors, two involving New York prosecutors (including Bragg), and one by a district attorney in Fulton County, Georgia. To call all of this a coordinated witch hunt among separate public officials at the federal, state, and local levels—as Republican lawmakers are scurrying to do—is, of course, nonsensical.

The other points are matters of basic civics.

Politicians can lie to voters with impunity as long as the voters allow it. Case in point: Unlike many thousands of career employees in the federal government, candidates for president do not have to go through background checks, which are designed to catch and weed out people who are unsuitable for sensitive work or, worse, susceptible to influence by enemies of the United States. Instead, presidential campaigns are supposed to do that for us: In the competitive hurly-burly of the political process, all the important dirt will sift to the surface of public debate to ensure that people have the information needed to cast informed votes. That’s what happened with Trump’s infamous remarks in the Access Hollywood tape. But enough voters shrugged that it didn’t end his campaign.

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But—and this is the second thing to keep in mind—the rules of courts are stricter than the rules of politics. Trump allegedly engaged in a “catch-and-kill” scheme orchestrated by then-National Enquirer publisher David Pecker to hide his relationship with adult film star Stormy Daniels and thereby avoid bad press in the month before the 2016 election. Trump’s former lawyer Michael Cohen pleaded guilty in federal court to eight criminal counts, including tax evasion and campaign finance violations arising from his payments of $280,000 to prevent Daniels and one other woman from telling their stories. Cohen was allegedly repaid by Trump in $35,000 installments under monthly legal “retainer” agreements that had nothing whatsoever to do with the provision of legal services. One anticipated theory of Bragg’s case against Trump is that he falsified related business records in the first degree in violation of New York Penal Code Section 175.10, which is a felony “when [a defendant’s] intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” Although legal pundits have properly noted that using a campaign violation as a predicate crime may be a first under this New York law, the legal website Just Security—which is affiliated with New York University School of Law—researched the crime and concluded that it is pretty routinely used:

Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.

Bear in mind that this coverup happened just prior to the election that put Trump in office. Consider, by contrast, Crystal Mason, a Texas woman who was sentenced to five years for trying to vote when she said she didn’t know she was ineligible, even casting a provisional ballot with the help of a poll worker. Mason’s vote—one among many millions—was of no practical consequence. Trump’s misdeed likely was.

Critics of Bragg have also pointed out that the Department of Justice charged Cohen for the underlying campaign violation, but not Trump, the insinuation being that Bragg is going where the feds would not. But at the time Cohen was prosecuted, Trump was in office and technically in charge of the Department of Justice and immune from prosecution pursuant to its longstanding internal policies. Cohen, moreover, is not Trump. The facts applying to each man’s involvement in the scheme are not identical. While the cases are not interchangeable, neither are the prosecutorial offices. Bragg was elected by Manhattan voters. Manhattan voters served as grand jurors of Trump’s peers, and if it comes to it, Trump will be judged by a trial jury of his peers, as well.

Which leads to the final point. Unlike for information swirling through elections, there are ample protections in place in the judicial system to ensure a fair trial by reliable evidence. The government’s burden is a high one—beyond a reasonable doubt. But the rules of evidence are strict for both sides, and Trump won’t be able to lie his way out of legal trouble the way he has lied his way out of political trouble so many times.

Unlike most criminal defendants or even arrestees in the United States, Trump has lots of money for lawyers, who will do everything in their power to ensure that Trump isn’t convicted. Numerous procedural and evidentiary rules are in place to protect against bias, inaccuracy, and unfairness, including the Due Process Clause of the Fourteenth Amendment. For many people ensnared in the criminal justice system, these rules still produce injustices. But it’s hard to imagine Trump will fall prey to the problems of poverty, structural racism, and inadequate counsel that many Americans face. Any conviction will be subject to appeals, too, which, given Trump’s prior position, could well include the Supreme Court—an impossibility for the rest of us.

Trump is on trial, but the rule of law is also being tested. The most important outcome is that the rule of law wins.

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Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.