Donald Trump may finally be indicted. Finally!
The Manhattan district attorney’s office has signaled that charges, related to Trump’s reported hush-money payments to the porn star Stormy Daniels, are likely.
But there’s also hand-wringing: about whether this is the best case to be the first among those in which Trump is likely to be criminally charged, the strength of this case compared to others and the historic implications of indicting a former president for anything.
And with regard to those implications, the central considerations always seem to be the importance of any precedent set by prosecuting a former president and the broader political significance — what damage it might do to the country. Often left out of that calculus, it seems to me, is the damage Trump has already done and is poised to continue to do.
Prosecution is not the problem; Trump himself is. And any pretense that the allegations of his marauding criminality are a sideshow to the political stakes and were, therefore, remedied in 2020 at the ballot box rather than in a jury box, is itself a miscarriage of justice and does incalculable damage.
Last year, around the time the House Jan. 6 committee was holding hearings, Elaine Kamarck, the founding director of the Center for Effective Public Management at the Brookings Institution, wrote: “Prosecuting Trump is not a simple matter of determining whether the evidence is there. It is a question embedded in the larger issue of how to restore and defend American democracy.”
I don’t see it that way. Any case against Trump must hang on the evidence and the principle that justice is blind. The political considerations, including gaming out what might be the ideal sequence of cases, across jurisdictions and by their gravity, only serve to distort the judicial process.
The justice system must be untethered from political implications and consequences, even the possibility of disruptive consequences.
For instance, could an indictment and prosecution of Trump cause consternation and possibly even unrest? Absolutely. Trump has been preparing his followers for his martyrdom for years and evangelizing to them the idea that any sanctioning of him is an attack on them. This transference of feelings of persecution and pain from manufactured victimhood is a classic psychological device of a cult leader.
Trump uses the passions he has inflamed as a political threat against those pursuing him: In 2019, when he was facing impeachment, he took to Twitter, citing a quote from Pastor Robert Jeffress, who’d appeared on Fox News and recklessly posited that if Trump were removed from office “it will cause a Civil War-like fracture in this nation from which this country will never heal.”
Last year, on a conservative talk radio show, Trump said that if he were indicted in connection with his alleged mishandling of classified documents, “I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”
Over and over, Trump has goaded his supporters in this direction: whether during the 2016 presidential race, urging rally-goers to “knock the crap out of” people who might disrupt the proceedings, or telling the Proud Boys, during a 2020 debate, to “stand back and stand by.”
On Jan. 6, 2021, he waited and watched the attack on the Capitol for hours, resisting pleas from his own advisers to try to stop it. When Trump finally made a statement, he downplayed the insurrection and reluctantly told the rioters to go home, but not without adding: “We love you. You’re very special.”
Trump is the impresario of incitement. He’ll use any attempt to hold him accountable to agitate and activate his loyalists.
That’s not a reason to avoid vigorously and swiftly pursuing him legally, but rather a reason to do it. If we establish a precedent that amassing a significant threat to society is a ward against enforcement of the law, it makes a mockery of the law.
It would reinforce what was already a persistent problem in the criminal justice system: unequal treatment of the rich and powerful, compared to that of the poor and powerless.
A series of studies from more than a decade ago in the Proceedings of the National Academy of Sciences found that upper-income people were more likely to lie, cheat and literally take candy meant to be given to children. The researchers postulated that several factors could have contributed to this, including a lowered perception of risk, plenty of money to deal with the “downstream costs” of their behavior, feelings of entitlement, less concern about what other people think and a general sense that greed is good.
At the same time, as Jeffrey Reiman and Paul Leighton write in their book, “The Rich Get Richer and the Poor Get Prison,” “The criminal justice system is biased from start to finish in a way that guarantees that, for the same crimes, members of the lower classes are much more likely than members of the middle and upper classes to be arrested, convicted and imprisoned.”
The authors go further, theorizing that the goal of the criminal justice system isn’t even to prevent crime or provide justice, but rather to “project to the American public a credible image of the threat of crime as a threat from the poor.” When you think of it that way, it’s not hard to see how Trump and many of his admirers choose to see him as above the law. Indeed, if he weren’t rich and powerful, charges would almost surely have been filed long ago.
Prosecuting Trump wouldn’t break the country. On the contrary, it would be a step toward mending it, a step toward undergirding the flimsy promise of “equal justice under law.”
The eyes of the country are on these cases — the eyes of all those who’ve been badgered for minor violations, who’ve had the book thrown at them for crimes that others either got away with or served no time for. Not only are they watching, but so are their loved ones and their communities.
They, too, are America, and further damaging their faith in the country should matter as much as damaging the faith of any other part of our body politic.
To rehabilitate American justice, Trump must be prosecuted.
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