© Jabin Botsford/The Washington Post
Former President Donald Trump speaks during an event at the Adler Theatre on Monday, March 13, 2023, in Davenport, Iowa. (Photo by Jabin Botsford/The Washington Post)
So much that isn’t known — and more that can’t yet be known. That’s the reality as Donald Trump, the first U.S. president ever to be indicted on a criminal charge, prepares for his court appearance in New York in the coming days. Living with uncertainty is now his life and the political life of the rest of the country.
This uncertainty comes in many forms and along a lengthy timeline. In the immediacy of the moment, all that’s known about the indictment is that it exists. Exactly what it encompasses remains a bit of a mystery. The heart of it involves hush money paid to the adult-film actress Stormy Daniels, a tawdry story long familiar to Trump watchers, and also possibly accusations involving falsification of business records.
The case that Manhattan District Attorney Alvin Bragg (D) plans to bring will be heavily scrutinized when the indictment is unsealed. Legal experts looking at what is publicly known about the particulars disagree about whether it is a strong case.
Regardless, the criminal indictment has implications for Trump’s campaign to win the presidency again in 2024. Would a weak case and acquittal add to Trump’s reputation as an escape artist able to find ways to avoid penalties for a string of misdeeds? Or does the fact that he is now caught up in the legal system in ways he never has been before mean he has more vulnerability and less control of events than he’s used to?
Indictment follows years of investigations on many fronts
Trump will continue to make this all about politics, with efforts to vilify Bragg, who was elected in 2021, as a partisan prosecutor and with exhortations to his loyalists to protest. But for all the sound and fury coming from the former president, this is not exactly a political campaign. Inside the courtroom, the outcome will be by a vote of a jury, not a reflection of public opinion or votes at polling places. He will have to go through the judicial process.
Not that politics isn’t ever-present. There has been a rush to the political barricades by Republicans, perhaps predictably. Even some of those who will challenge Trump for the 2024 Republican nomination have come to his defense — or perhaps more precisely put, have joined in the attacks on Bragg.
Former vice president Mike Pence, who has broken with Trump over the Jan. 6, 2021, attack on the U.S. Capitol, has said that it is an “outrage” that Trump has been indicted over a campaign finance issue, decrying what he said was an example of the criminalization of politics.
Florida Gov. Ron DeSantis made clear he would not allow his state to be party to extraditing Trump — if it somehow came to that, seeing as Trump resides in Palm Beach — and said, “The weaponization of the legal system to advance a political agenda turns the rule of law on its head.”
Trump obviously agrees with these complaints. “This is Political Persecution and Election Interference at the highest level in history,” he said in a statement released Thursday evening after the first reports of his indictment. Playing the victim has been his main talking point practically every time he has been accused of wrongdoing.
© Saul Martinez for The Washington Post
Security at the front gate of Mar-a-Lago on Friday morning.
Putting aside the hyperbole of some of the rhetoric, there is an issue here. In the past, some prosecutors have been accused of criminalizing political activity with the indictment of public officials. In some of those cases, juries found the evidence persuasive and public officials have served time. In this case, the accusation is that Bragg is weaponizing the judicial system for political ends.
This issue will be part of the legal background and perhaps the political foreground as the Trump case goes forward. Is this really the criminalization of activity with the intention of affecting a political campaign or is it testament to the principle that no one in this country is above the law, not even former presidents? And is this the case where those questions should be adjudicated?
Indictment is a first for U.S. democracy, but not for other democracies
There are other investigations of Trump’s actions pending that might provide a better forum for that debate, whether the Justice Department’s probe of his handling of classified documents found at Mar-a-Lago; the investigation in Fulton County, Ga., into whether he illegally tried to overturn the results of the 2020 election in that state; or, the biggest of all, his potential liability for the role he played in events that led to the attack on the Capitol.
The New York indictment and the other pending investigations put the country on a path that will test individuals and institutions. The indictment threatens to add fuel to the bonfire of contemporary politics. A democracy that has been under strain will feel new pressures as events play out in courtrooms and along the campaign trail. The integrity of the judicial system is at stake.
Some legal experts have warned in the past that decisions to indict a former president, however warranted by the facts and the law, involve potential consequences for the health and vitality of the nation that might argue against taking such a step. That argument raises the question of whether Trump’s future should be left to voters in 2024 or whether holding him to account legally is an important principle regardless of its political implications. But here we are.
The biggest question — and biggest unknown — is what this indictment and the potential for future charges might mean to Trump’s 2024 presidential campaign. It’s not predictive to say that, in the long run, any indictment is not good for the former president, even if there is a short-term burst of support for him among members of his party.
The immediate reaction to the indictment was the latest reminder of the influence he wields in the Republican Party as a field of challengers takes shape. Trump is the big dog, although one who often acts like a wounded puppy.
The reality is that he is both strong and weak. He has the capacity to demand attention, set the conversation and at times compel behavior, even among Republicans who would rather see him fade from view. Yet he has taken a number of hits since losing the 2020 election to Joe Biden. He lied repeatedly about the election results and in insisting that there was major electoral fraud that year. He was impeached for his role in the Jan. 6 attack. Although Trump was acquitted thanks to Republicans in the Senate, Minority Leader Mitch McConnell (R-Ky.) did note that he remained liable to the justice system once out of office.
More recently, Trump has been accused of contributing directly to the Republican Party’s underwhelming performance in the 2022 midterm elections through his endorsements of weak candidates who lost critical contests, adding to calls for the party to move on from him.
Answers to questions about his political future will come in stages, but slowly, first as the Republican nomination contest unfolds and then, if Trump weathers it successfully, during the general election campaign in the summer and fall of 2024. If Trump is the party’s nominee, as things stand today, he could be reelected, given the divisions that exist in the country and doubts that exist about Biden’s job performance and age.
Republicans will render the first judgment about Trump’s political viability. They will have to weigh whether they want the chaos and turmoil that come with the former president. They will have to consider whether the added baggage he may have accumulated by then makes it time for someone new to lead them, however sympathetic they may be to Trump’s arguments that he has been persecuted by his opponents. They will have to weigh whether they believe he can win over the swing voters who will decide the general election.
The fact that so many in his party rushed to his defense in the hours after news of the indictment came out does not equate to the political judgments that will have to be made when the primary season begins next year. Right now, Trump faces an accounting in the criminal justice system. The political accounting comes later.
