Notes on the Trump indictment

Trump may be getting what he deserves, but is America?

It’s been clear for some time that Donald Trump would be indicted for obstruction of justice and other offenses related to his end-run around providing documents he was legally obligated to produce. I wrote about that prospect here and here.

Now that the indictment has come, the most surprising thing is that this case will be brought in South Florida instead of Washington, D.C. Trump is far more popular in South Florida than in D.C. In addition, this report shows that, as a general matter, it’s very difficult to persuade South Florida jurors to convict politicians.

Why did the special prosecutor bring the case in Florida? Perhaps because that’s where it should be brought, the alleged crimes having occurred there. Perhaps to avoid fighting (and quite possibly losing) a long battle over the proper venue.

Or maybe because conviction by a D.C. jury wouldn’t gain anything approaching the kind of public acceptance the prosecutor desires (or should desire) in a case as unprecedented and divisive as this one. Any conviction will spark widespread partisan outrage, but a conviction by a South Florida jury would make it more difficult for rational people to view Trump as “an innocent man.”

According to reports, the indictment includes a count for violating the rules governing the handling national-defense intelligence. The prosecutor thus will face claims that he’s treating Trump differently than Joe Biden, Mike Pence, Hillary Clinton and others who retained classified documents.

However, again according to reports, the prosecutor accuses Trump of “willfully” retaining such documents. To show willfulness, the prosecutor can point to a course of conduct by Trump to resist returning the items — alleged false statements to the government, deceiving his own lawyer about the documents, etc. This should distinguish Trump’s situation from those of Biden and Pence, though perhaps not entirely from Hillary Clinton’s.

Two pet phrases about this matter have emerged in the talking points of partisans. Trump supporters warn that this indictment makes the U.S. a “banana republic.” Trump haters intone that “no one is above the law.”

Both phrases are pertinent. Let’s examine them as they apply to this case.

It’s true that indicting a former president and the leading candidate for his party’s nomination, if done by a government controlled by the opposition party, gives the appearance of banana republicanism. But it also smacks of banana republicanism when a former president gets away with thumbing his nose at the legal process as blatantly as Trump is alleged to have done.

Either way — indictment or no indictment — we begin to look like a banana republic. I think Donald Trump bears most of the responsibility for the dilemma.

Still, indicting Trump seems like the more ominous course. It creates the likelihood that the next Republican administration will indict Joe Biden for his business dealings (assuming Biden is still around to indict).

Serial indictments of former presidents, one of whom was seeking a return to office, would make a mockery of our political system. Thus, a decent regard for preserving the integrity of that system counsels against this indictment.

But what about the integrity of our legal system? This is where the phrase “no one is above the law” comes into play.

Here, I want to distinguish between two ways a president might be “above the law.” If a president commits an ordinary crime — or even an extraordinary one like using campaign money to pay off a porn star with whom he had extra-marital sex — and isn’t prosecuted for the offense, it can be objected that the president is being placed above the law.

However, the decision whether to prosecute a former president or a presidential candidate shouldn’t end there. Presidents occupy a unique place in our constitutional system. Concerns about undue interference with the constitutionally established political process, especially if the interference comes from the political opposition, should be considered.

But there’s a second way in which a president might be said to be above the law — a way that applies to Trump’s alleged documents escapades.

Committing an ordinary violation of the law doesn’t entail placing oneself above the law. If I drive 80 miles per hour in a 55 mph zone, I’m violating the law, but I’m not putting myself above it. I’m just driving too fast because I’m in a hurry or maybe because I enjoy it.

Trump’s case is different. If the allegations against him are true, he refused to comply with a subpoena and used underhanded means to avoid compliance, including lying to prosecutors and to his own lawyer.

A good way to summarize this alleged misconduct is that Trump placed himself above the law by thumbing his nose at it. Thus, the phrase “no one is above the law” carries special force in Trump’s case.

Enough force to overcome the potentially dire implications of prosecuting a former president and the leading opposition party candidate for president? For me, it’s a close call.

At a rally during the 2016 campaign when the crowd was chanting “lock [Hillary Clinton] up,” Trump, in a rare moment of statesmanship, said “defeat her.” My inclination now would have been to say something similar to the prosecutor. Don’t try to lock Trump up. Instead, write him up and see if the American people want to defeat him.

However, I understand why, in good faith, the special counsel could have decided to indict. And I want to see the indictment before reaching a firm view as to whether the case should have been brought.