For former President Donald J. Trump, the stakes are high in the federal criminal case brought against him. He could theoretically go to prison for years. But if he ends up in the dock before a jury, it would not be an exaggeration to suggest that the American justice system will also stand trial.
The first federal indictment in history against a former president represents one of the greatest challenges to democracy the country has ever faced. It represents either an affirmation of the rule of law principle that even the most powerful are held accountable for their actions, or the moment when much of the public becomes convinced that the system has been irretrievably corrupted by partisanship.
Mr. Trump, his allies and even some of his Republican rivals have embarked on a strategy to encourage the latter view, arguing that law enforcement has been hijacked by President Biden and the Democrats to eliminate his strongest opponent for re-election next year. Few if any of them bothered to wait to read the indictment before supporting Mr Trump’s claim that it was just part of the “Greatest Witch Hunt of All Time”. It is now an article of faith, a standard tactic, or both.
Jack Smith, the special counsel and his prosecutors knew the defense was coming and worked hard to avoid any hint of political motivation with a by-the-book approach, securing the approval of judges and grand jurors along the way. In addition, their indictment contained a damning set of facts based on security camera video, text messages and testimony from within Mr. Trump’s own team; even some who have defended him in the past say it will be more difficult to overrule the evidence in a court of law than in the court of public opinion.
In the public arena, however, it can be a one-sided battle. Mr. Trump and his allies can shout as loud as they can that the system is unfair, but prosecutors are bound by rules that limit how much they can say in response. To the extent that the Democrats defend the prosecutors, this can only support the point Mr. Trump is trying to make to the public he is trying to reach.
“I think the judgment on democracy ultimately falls on Republican leaders and Republican voters,” said David Jolly, a former Florida Republican congressman who left the party during Trump’s presidency. “Their current arms narrative is dangerous and destabilizing, but seems to reflect the party’s early consensus. If they don’t switch quickly to due process and trust in the system, I think we could have very dark days ahead. I do worry.”
Polls show that Mr. Trump has made progress by convincing at least his own supporters that all allegations against him are purely political. After Manhattan District Attorney Alvin L. Bragg filed state charges against him in connection with hush money paid to an adult film actress, the former president’s support among Republicans grew rather than waned.
While 60 percent of all adults polled by NewsMadura retrospectively agreed with the allegations, 76 percent agreed that politics played a role in the prosecution. In terms of the effect on the US system, 31 percent said the indictment strengthened democracy, while 31 percent said it weakened it.
All this indicates that the credibility of the system is at stake like never before. Many have criticized the American justice system over the years for systemic racism, excessive punishment, mistreatment of women who are victims of assault, or other issues, but they did not carry the megaphone of the presidency. When former presidents like Richard M. Nixon or Bill Clinton got into trouble, they defended themselves aggressively, but did not question the entire system.
“In 1972 to 1974, Republicans participated in the process in good faith,” said Garrett Graff, the author of “Watergate: A New History,” published last year. “They saw their role as legislators first and Republicans second. They were certainly “skeptical at first” about the allegations against Nixon, “but they followed the facts where they led.”
Even Nixon’s sharp-tongued Spiro T. Agnew was wary of broadly disparaging the justice system. “Agnew was Nixon’s attack dog, of course, but mostly against the press, not the FBI or the special counsel,” said Mr. Graff.
Mr. Trump, on the other hand, holds nothing back when he attacks “the ‘Thugs’ of the Department of Injustice” and calls Mr. Smith a “deranged lunatic.” Republicans such as Representative Andy Biggs of Arizona have called for the dismantling of the FBI “We have now entered a phase of war”, he wrote on Twitter on Friday. “An eye for an eye.” Elon Musk said authorities were demonstrating “much greater interest in chasing Trump compared to other people in politics.”
Several of Mr. Trump’s competitors for the Republican presidential nomination joined. Former Vice President Mike Pence compared the charges to leaders of “Third World countries” who “use a criminal justice system in their country against their predecessors.” Florida Gov. Ron DeSantis said that “the arming of federal law enforcement poses a mortal threat to a free society.”
The former president’s defenders generally don’t address the substance of the 37 charges against him, instead arguing for selective prosecution that appeals to many Republicans: What about Mr. Biden? What about Hunter Biden? What about Hillary Clinton?
They point to the origins of the Russia investigation against Mr. Trump, citing the recent report by Special Counsel John H. Durham sharply criticizing the FBI for its handling of the case, even if it did not come with any new blockbuster revelations of politically motivated misconduct, nor lead to the conviction of a major figure.
They point to Republican congressional investigations that they believe indicate misconduct by the Bidens, even without corroboration. They point to the ongoing federal criminal investigation into the president’s son, Hunter, and suggest that it has been obstructed. And they point out that the president himself is also under investigation for withholding classified documents that have not yet been charged.
However, the differences between the cases are large, making comparing apples to apples complicated. For example, in the documents search, Mr Biden’s advisers have so far most likely returned the papers to authorities after discovering them. Mr Pence did the same after a voluntary search of his home revealed that the former vice president had kept secret documents, and he was recently cleared by the Justice Department on the grounds that there was no evidence of willful misconduct.
Mr. Trump, on the other hand, refused to turn over all the documents he took from the White House — even after being subpoenaed to do so. According to the indictment, he orchestrated an elaborate scheme to hide papers and spread lies to authorities looking for them. On two occasions, the indictment said, Mr. Trump showed classified documents to people without security clearance and indicated that he knew he was not supposed to do so.
As for trying to arm the Justice Department, there was ample evidence that Mr. Trump attempted to do just that while in office. He openly and aggressively urged his attorneys general to prosecute his perceived enemies and drop cases against his friends and allies, without pretending to seek equal and independent justice. His approach by friends and family to his clemency grant lent leniency to associates and those who had access to him through them.
During his four-year tenure, he has flouted so many standards that it’s no wonder institutions have faced credibility issues. Indeed, he has made it clear that he does not respect the boundaries imposed by other presidents. Since leaving office, he has called for the “termination” of the constitution so he can return to power without waiting for new elections, and has vowed to serve a second term in “retaliation” against his enemies as he pardons supporters who stormed the Capitol. on January 6, 2021 to stop the transfer of power.
In contrast, there is no evidence that Mr. Biden played a role in the investigations against Mr. Trump. Unlike the loquacious Mr. Trump, he has made it a point not to even comment publicly on individual prosecutions, saying he respects the Justice Department’s autonomy.
Attorney General Merrick B. Garland has been sensitive to the issue of perception and sought to isolate the investigations by appointing Mr. Smith, a career prosecutor not registered with either political party, as special counsel with a guarantee of independence in the absence of manifest misconduct on his part.
But that would never convince Mr. Trump or his most ardent supporters of the fairness of the process. Ultimately, the former president and front-runner for his party’s nomination for the next president is sued by a prosecutor appointed by an appointee of the man he hopes to defeat. It’s a recipe for distrust, especially when fueled by a defendant who has mastered the politics of grievance and victimization.
Will this lead to permanent damage to democracy? Even some who support the Trump charge fear so. Still, some who have studied politically charged investigations advised patience. There will be fireworks. Many will doubt the credibility of the system. But eventually, they said, the system will survive as it has for more than two centuries.
“It’s messy and uncomfortable for the generation going through it, but the system is durable enough to win,” said Ken Gormley, president of Duquesne University and author of books on Watergate and the Clinton investigations. “As painful as next year is likely to be as the criminal justice system scrambles for a fair verdict in the Mar-a-Lago documents case — whatever that outcome may be — we are fortunate that our predecessors spent 234 years supporting the stronghold.”