Donald Trump’s indictment in Manhattan ushers in a new phase of his political career — and perhaps of American political life — in which the struggle over the rule of law moves into a legal setting. This moment is flush with possibility and explosive danger.
Two paradoxical forces are bearing down on the city courthouse where the former president will be arraigned. The first is a long-term trend toward the criminalization of politics. A quarter-century ago, conservatives convinced themselves that the rule of law depended on removing Bill Clinton from office simply because a right-wing prosecutor had maneuvered him into denying a sexual affair under oath. Respectable conservatives circulated lurid fantasies of Clinton’s criminality, insinuating that he had been running a corrupt financial scheme, along with possibly a secretive drug operation, and that the suicide of White House aide Vince Foster was actually a murder to cover up Foster’s knowledge of the schemes.
By the time Trump ran for president in 2016, he could lead chants of “Lock her up!” against Hillary Clinton, drawing on decades of belief that imprisonment would be the normal, correct treatment of an opponent. Once in office, he intensified this style, continually depicting almost any political opponent or critic as a legal wrongdoer. He flung charges of criminality at the past four Democratic presidential nominees: Joe Biden, Clinton, Barack Obama, and even John Kerry (for allegedly violating the Logan Act). He has called for prosecuting the likes of Nancy Pelosi, Adam Schiff (for paraphrasing Trump’s Ukraine phone call in a speech), John Bolton (for writing a tell-all book), Joe Scarborough, numerous former FBI officials, and three Obama-era national security officials.
Most of these wild claims drew broad support from within his party. And while his rhetoric mostly failed to yield charges, Trump did succeed in pressuring U.S. Attorney for the Southern District of New York Geoffrey Berman to bring charges against Democratic lawyer Gregory Craig. Trump’s attorney general appointed a special counsel, John Durham, who brought spurious legal cases against several Trump targets.
What made this all so terrifying was not just the authoritarian corruption of legal power but the broader idea that the natural state of U.S. politics was for the winning party to imprison the losers. Democratic systems rely upon the winners exercising forbearance toward the losers.
It is a sick historical joke that the criminalization of politics ran up against the country electing its first criminal president. This is not to say Trump is the first U.S. president to have violated the law. Rather, he is the first to come to his position via the world of crime.
Trump has spent his life surrounded by gangsters. His defiance of the law dates back five decades to the 1970s, when he and his father refused to allow Black tenants to rent Trump-owned apartments and made a mockery of Justice Department efforts to force them to obey nondiscrimination laws. Trump’s niece, Mary Trump, turned over documents to the New York Times proving Trump had systematically engaged in criminal tax fraud (setting up shell companies, siphoning funds) for years. Reporters have produced strong evidence that he routinely misrepresented the value of his assets to lenders and the government in order to enrich himself. His family’s charitable foundation was closed down for its misappropriation of funds. The layman’s term for such activities, in which you break the law in order to have more money, is stealing. While he was in office, an astonishing array of Trump’s confederates were convicted of crimes.
Trump has escaped prosecution owing to a combination of scandalously lax law enforcement against the wealthy, along with a hardened criminal’s instinct for self-protection. He has famously steered clear of communicating in writing and even scolded his lawyers for taking notes in his presence. (His favorite attorney, Roy Cohn, also a mob lawyer, assiduously avoided writing down anything in his presence as well.) Trump has always spoken like a criminal, disparaging cooperating witnesses as “rats” or “flippers,” and he thinks like one, too: There is no moral difference in his mind between the law abiding and the law defying. The only difference is that some people are smart and others are suckers.
And yet: The foundation of any fair legal system is that everybody, even a criminal, has rights. The leaked details of the case against Trump reportedly being brought by Alvin Bragg are underwhelming and border on the negligent. They seem to stitch together a decent misdemeanor case against Trump for falsifying records (his disguising of a payoff to one or potentially two women with whom he had affairs) and could charge the payment as a campaign-finance violation. Unless there is more to Bragg’s case than has been reported, it smells of an effort to find a crime.
The indictment’s details matter tremendously. The sanctity of the rule of law hinges upon applying its force equally, without regard to the standing of the accused. This requirement goes both ways — Trump’s decades of using his power to steal and cheat is one form of corruption of the rule of law that cannot be resolved by locking him up over a charge no other person would likely have faced. Turnabout is not fair play here.
So as the world waits to see what the charges contain, the principle to keep in mind is that what needs to be upheld is not an outcome but a system. That it is a system Trump has devoted his life to discrediting is one of the strange ironies of this moment.
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