5 Takeaways from Trump’s 4 Indictments

Trump Is Finally Being Held to Account in a Criminal Case

From his formative years as a New York City real estate developer, Trump has played fast and loose with the law, but somehow managed to escape criminal accountability. In 1973, the Justice Department filed a civil suit against him, his father Fred, and their management company for discriminating against prospective Black tenants. The case was settled two years later with a consent decree and no admission of wrongdoing.

As president, Trump avoided conviction in two Senate impeachment trials. And while he has also lost some important and embarrassing private civil actions—most recently, the sexual assault case involving writer E. Jean Carroll—the indictments mark the first time he will be tried for criminal offenses that could put him in prison for the rest of his life.

As a Nation We Have Entered Uncharted Territory

The indictments are not only a first for Trump, but for the entire nation as well.

Apart from the somewhat comical 1872 arrest of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no sitting or former American president has ever been charged with committing a crime. Grant was taken to a local police station, where he paid a fine and was released.

A draft indictment of President Richard Nixon for his role in the Watergate affair was prepared, but never voted on by the federal grand jury convened to investigate the infamous burglary and cover-up.

Trump stands alone.

The ‘Rule of Law’ Is at Stake, but With Undeniable Political Implications

One of the great shibboleths of American jurisprudence is that we are a nation that operates according to the “rule of law.” The Administrative Office of the U.S. Court system maintains a website on behalf of the federal judiciary that defines the rule of law as “a principle under which all persons… are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.”

If anyone other than a former president had engaged in the kind of multifaceted crime spree for which Trump stands accused, they would have been charged and tried long ago. The indictments lodged against Trump are consistent with the rule of law. They are not politically motivated.

That does not mean, however, that there are not profound political ramifications to the indictments. Trump is still likely to be the Republican presidential nominee in 2024. His prosecutions will be a dominant campaign issue.

Scheduling the Trials Will Be a Logistical Nightmare, and Trump May Be Acquitted

Although trial dates have been set in New York and Florida, they should be considered tentative. Trump will be required to attend his trials in person, and he can only be in one courtroom at a time, which means that only one or two trials at most can be expected to commence before the next election.

If, and when the trials begin, Trump will be presumed innocent like every other defendant. And despite the apparent strength of the indictments, the cases are not slam dunks. Any one of them could be derailed by a stealth Trump juror, especially in Florida, where the trial will be presided over by District Court Judge Aileen Cannon, who is not only inexperienced but has previously demonstrated a bias in favor of the former president.

Trump and the MAGA Movement Have Precipitated a Constitutional Crisis

As I have written in these pages before, legal scholars clash over the definition of a constitutional crisis, but generally agree that such existential reckonings arise from power struggles between political actors or movements that believe their opponents have violated the Constitution and neither is willing to yield ground. The Civil War is the prime historical example.

Although we are not divided today into regional armies as we were in the 1860s, we are cleaved along a new battlefront, pitting an illiberal form of authoritarianism represented by Trump and the MAGA cult that has captured the Republican party against what remains of American democracy.

Should Trump manage to win the next election and become president again, he will without doubt use his authority to dismiss the federal cases against him, and perhaps, in another instance of constitutional norm busting, issue a pardon to himself.

While he will not be able to pardon himself for state crimes, he will likely petition the Supreme Court to intervene and stay any state court proceedings until he leaves office. In its ruling in Clinton v. Jones (1997), the high court allowed Paula Jones’ federal case to proceed, but observed that under the Constitution’s Supremacy Clause, it might not have permitted a state case to continue against a sitting president.

There are respected legal commentators who believe prosecuting Trump could have terrible consequences for the country, compounding our festering and rancorous divisions. The only thing worse, however, would be not prosecuting him at all.