Kampala, Uganda | BAZZUP | The New York Times announced on March 31 that a Manhattan grand jury had decided to charge former U.S.
President Donald Trump after much media buildup. The district attorney’s office launched a criminal inquiry into whether payments made to adult film star Stormy Daniels (via Trump’s lawyer Michael Cohen) in violation of electoral laws. This led to the indictment.
Trump’s indictment appeared inevitable in retrospect, according to Emma Shortis, a lecturer at RMIT University and a member of the Independent and Peaceful Australia Network (IPAN).
According to her, the indictment of former US President Donald Trump on criminal charges has been a possibility since the start of his presidency arguably, since close to the beginning of his career in New York real estate.
“But until now, the potential consequences of such a cataclysmic development in American politics have been purely theoretical,” she adds.
In an article in The Conversation; an online news journal, she points out that the likely immediate activity could involve the Manhattan district attorney attempting to negotiate Trump’s surrender.
Trump also faces a swathe of other criminal investigations and civil suits, some of which may also result in state or federal charges. As he pursues another run for the presidency, Trump could simultaneously be dealing with multiple criminal cases and all the court appearances and frenzied media attention that will come with that.
These investigations and possible charges won’t prevent Trump from running, or even serving as president again (though, as with everything in the U.S. legal system, it’s complicated).
But what will the political fallout be will his indictment hurt Trump, or help him? And what does it mean for American democracy?
Can Trump survive multiple investigations at once?
There are almost too many hypotheticals and “what ifs” to count. Even the immediate fallout of Trump’s indictment isn’t clear.
It is certainly plausible Trump will manage to derive political benefit from the media spectacle he has a long history of successfully weaponising investigations into his dealings as “witch hunts”, effectively tapping into conservatives’ obsession with “government overreach”.
It’s equally possible multiple investigations and charges will eventually hurt Trump, forcing him off the campaign trail and into situations out of his control, where he doesn’t perform so well. This could go as badly for him as the few hostile media interviews he did as president and open the door for a successful challenge by another aspiring candidate.
Democrats and others opposed to Trump and the movement he heads are also divided on the fallout and risks.
Some legal experts and political pundits have expressed concern about the particular case that led to Trump’s indictment.
The Daniels case is murky and focused on technical election laws, raising questions about whether it would have been less risky to prioritise a more straightforward case, such as the Georgia investigation into Trump’s attempt to influence the outcome of the 2020 presidential election. Indictments may soon be forthcoming in that case, too.
Whatever happens with these investigations and Trump’s reactions to them, it’s already clear his supporters will whip themselves into a frenzy of misinformation, hysteria and perhaps even violence, further destabilising the political landscape.
Are presidents above the law?
There’s a much bigger question to ask, though: where does all of this fit into the deep, ongoing crisis surrounding American democracy and its institutions?
Since the 2016 election, the questions of whether a candidate should be subject to criminal investigations and whether a sitting president can be charged with an offence have plagued US politics.
When then-FBI director James Comey sent a letter to Congress on the eve of the 2016 election about the private email server presidential candidate Hillary Clinton used as secretary of state, it led to a great deal of soul-searching about the impact of perceptions – valid or otherwise of politically motivated “interference” in the electoral process.
The longstanding reluctance of federal agencies to engage in such “interference”, alongside the established consensus that a president should not be charged while in office, survived until almost the very end of the Trump administration.
The so-called “Russia investigation”, led by Special Counsel Robert Mueller, declined to recommend specific charges against Trump, despite there being ample evidence he had allegedly obstructed justice. The basis for this decision: Mueller said Justice Department policy prevented him from charging a sitting president with a crime.
Former U.S. President Donald Trump
But between the release of Mueller’s report and Trump’s incitement of an insurrection of the U.S. Capitol on January 6, 2021, attitudes to charging a president or former president appear to have changed dramatically. Trump’s indictment this week makes that abundantly clear.
The shared understanding that has, until now, protected Trump (and predecessors like Richard Nixon), has been turned on its head. Now, there’s a belief among many Democrats and a few anti-Trump Republicans that not pursuing these investigations to their logical ends – that is, an arrest, trial and potential imprisonment presents a much greater threat to the integrity of American democracy and democratic institutions than the risk of appearing to “interfere”.
This logic argues that, particularly when American democracy is in crisis, even presidents and former presidents cannot be seen to be above the law.
If this perception was widespread, how many Americans would completely lose faith in a political system they already don’t trust entirely? Even more importantly, how would the perpetrators of crimes and their supporters respond if they believed they could break the law without consequences?
If, as many experts have argued, January 6 was a test run, what are the consequences of no consequences?
A dangerous and unstable time
Emma Shortis says we can be fairly certain of the answer to that question. Trump’s reaction to his pending indictment two weeks ago was eerily reminiscent of his incitement of the riot on the Capitol: “Protest, take our nation back!”
The potential for further violence which is a feature, not a bug, of American politics is very real.
“While the logic behind the criminal pursuit of the ex-president is entirely sound and necessary to the ongoing integrity of American democratic institutions that does not necessarily mean the survival of those institutions is assured as they are forced to respond to ongoing attacks,” she says in her article which has been referenced here.
“Trump’s indictment, and the frenzy it has already created, demonstrate just what a dangerous and unstable time this is for American democracy. The road is probably about to get even rockier,” she adds.
She references a 1977 interview in which Nixon said, in response to a question about why he had authorised illegal actions against anti-Vietnam war protesters: “Well, when the president does it that means that it is not illegal”.
She concludes that almost half a century later, we’re as close as we’ve ever been to finding out if Nixon was right – and if American democracy can survive the answer.
Just another defendant?
Donald Trump’s indictment means that even though he is the first former president of the United States to be charged with a crime, he will be treated to some degree, anyway just like any other defendant in the criminal justice system.
When he is arrested, Trump will be read his rights, known as a Miranda warning, including how he has the right to remain silent, the right to an attorney and that what he says can be used against him in a court of law.
Then Trump will be taken into custody, and processed just like any other defendant, including a booking number, former prosecutors and law enforcement officials told USA TODAY. “There will still be a mug shot, fingerprints and lots of paperwork filled out as part of the booking process,” like other defendants, said former federal prosecutor Glenn Kirschner.
Underscoring the unprecedented nature of the case, it is expected that Trump will be accompanied through the process by his Secret Service detail, as former presidents are afforded such protection for life.
Given his special stature, Trump’s first appearance could be a relatively calm event, with special efforts made by prosecutors and police to shield him from the kind of “perp walk” that authorities sometimes force other defendants to endure. That means a march often in handcuffs past the throngs of New York media. In some cases, some defendants have chosen to be taken into custody that way in an effort to make a statement about their arrest and the charges against them.
Trump Attorney Joe Tacopina said the former president was expected in New York early next week for arraignment.
“It’s safe to say it will be a complete circus, and that’s an understatement,” predicted Matt Dallek, a presidential historian. “I doubt they will cuff him. But my understanding is he will need to be fingerprinted and take a mug shot.”