The Indictment of a President
Former President Donald J. Trump was indicted by a New York grand jury on March 30th, 2023, marking the first time in American history that a former president faces criminal charges. The indictment represents the culmination of the Manhattan district attorney’s office’s years-long probe into Trump’s conduct. Trump faces 34 charges related to campaign finance improprieties, centered around hush money sent to adult film star Stormy Daniels during the 2016 election.
These historic charges are not the last of Trump’s legal issues. The former president is facing legal investigations on a range of conduct, including his role in the January 6th insurrection, his possession of classified documents in Mar-a-Lago, potential obstruction of the federal investigation into those documents, and his urging of Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” after the 2020 election. A Georgian grand jury has convened to determine whether Trump’s phone call to Raffensperger violated Georgia law.
These legal investigations come at a contentious time in American politics. Trump announced his re-election bid on November 15th, 2022, marking his official entry into a contended Republican primary. An underwhelming GOP performance in the midterms, a cycle dominated by issues of abortion and election denialism, has caused many on the right to question Trump’s viability as a presidential nominee. These murmurs have been magnified by Florida Governor Ron DeSantis’s emergence as a strong potential contender in the aftermath of his decisive 19.4 percentage points victory in Florida.
Democrats' responses to the charges have been mixed. Many left-wing Democrats have publicly praised the indictment, with Congressman Jamaal Bowman (NY-16), one of the nine members of the liberal ‘Squad’, stating that “it’s time that we ensure Trump is banned from running for any public office again.” Representative Jimmy Gomez (CA-34) echoed this sentiment, arguing that “this twice-impeached former president is a threat to our democracy.” These proclamations reflect the Democratic left wing’s belief that the prosecution of Trump is necessary for preserving democratic norms. However, many moderate members of the Democratic leadership have remained neutral. House Minority Leader Hakeem Jeffries referred to the indictment as “a serious moment” nationwide, while former Speaker of the House Nancy Pelosi released a statement saying that “no one is above the law, and everyone has the right to a trial to prove innocence.” These careful statements stem from the tenuous line moderate Democrats tread. These Democrats hope to simultaneously impeach the credibility of the GOP while avoiding the perception of politicizing the prosecution.
While the Democrats remain divided in their response to the proceedings, the Republican leadership has uniformly attacked the prosecution as politically motivated. Speaker of the House of Representatives Kevin McCarthy decried the indictment as having “irreparably damaged our country in an attempt to interfere in our Presidential Election” and “weaponiz[ing] our sacred system of justice against President Donald Trump.” Ron DeSantis declared that the state of Florida “will not assist in the extradition” and characterized the indictment as “the weaponization of the legal system to advance a political agenda.” This declaration comes in the midst of DeSantis’s efforts to restrict journalistic protections. Trump’s former Vice President Mike Pence denounced the charges as “further serv[ing] to divide our country,” while Republican Chairwoman Ronna McDaniel deemed the indictment a “blatant abuse of power.” These statements reflect the GOP’s near-unanimous rejection of the indictment’s legitimacy.
The implications of Trump’s indictment extend beyond an individual election. Experts argue that politicization of the rule of law represents an existential threat to democratic governance. A resilient rule of law demands effective adaptation to high-profile and politically charged cases, including against heads of state. A legal system incapable of objectively adjudicating cases involving political figures absolves the political elite from abiding by the legal system.
While the indictment of a former president is unprecedented in America, several democratic nations globally have grappled with legal proceedings against former heads of state. Two former presidents have been sentenced to prison in South Korea, with Park Guen-hye sentenced to 20 years on corruption charges in 2017 and Lee Myung-Bak sentenced to 15 years in prison in 2020 for accepting bribes and embezzlement. France, a long-standing democratic partner of the United States, has faced similar proceedings–former French President Nicolas Sarkozy was sentenced to three years in 2021 for campaign finance violations.
The United States has also proven itself capable of handling prosecutions of elected officials. The Center for Illinois Politics reports that eleven governors nationwide have been convicted for federal corruption offenses, with seventeen others convicted for lesser misdemeanors and felonies. The most recent is former Illinois Governor Rod Blagojevich, a Democratic governor who was impeached by the Illinois General Assembly and sentenced to 14 years in prison for mail and wire fraud and the solicitation of bribery. Blagojevich’s sentence was commuted by Donald Trump in 2020 after serving eight years in prison.
None of these cases undermined faith in the rule of law or irreparably polarized the judiciary. Illinois Democrats did not abdicate all hope in the legal system because of the conviction of a Democratic governor. Rather, citizens trusted the legal system to adjudicate each case impartially and respected the legal ruling. French and South Korean democracy still thrive, with Freedom House rating both states as free democracies. Given that American jurisprudence centers around the conception that no individual is above the law, there is no coherent justification for extending legal immunity from prosecution solely to the President of the United States.
Legal commentators on both sides of the aisle have raised contrasting concerns about the content of the Trump indictment. Many on the left problematize the fact the indictment is divorced from the events of January 6th and instead centers on a campaign finance issue from the 2016 election. They argue this indictment may eliminate public support for prosecuting Trump over more meaningful infractions. The law is also unclear on whether Alvin Bragg can even charge Trump for attempting to violate federal election law in state court. Even if Bragg successfully demonstrates that Trump falsified records to cover a federal crime, it is ambiguous whether Bragg may use evidence of a federal law violation to charge Trump under New York’s false record law.
Conversely, right wing figures argue that the prosecution constitutes the politicization of the legal system. Republicans claim the case’s legal fragility proves that it is a politically motivated witch hunt. CNN’s polling indicates that 94% of voters who lean Republican believe politics played a role in the indictment. GOP commentators have proposed responding to the charges by investigating Alvin Bragg’s office for potential improprieties.
Whatever the legal outcome, questions about the neutrality of the rule of law will emerge. The capability of the U.S. legal system to resist political pressure and the ability to overcome polarization will send a powerful signal about the strength of democratic norms. The perception of an uncheckable executive, whether Trump is guilty or innocent, will inevitably cascade to the erosion of institutional credibility. However, if the judiciary resists polarization while realizing due process, democratic institutions will have proven their worth.