The Indictment, the Election, & the Constitution

Did you hear Donald Trump got indicted and charged with committing 34 felonies? The media’s been keeping it pretty hush hush.

I kid, of course. American history’s first indictment of a current or former president is the biggest story in the news, and so Presidential Politics For America is contractually obligated by WordPress to cover it. (I’ve never seen the contract, but I’m assuming it’s in there somewhere.)

It’s such a big story, I’ll even use my first long post in a while to cover it. I’ll hit on:

• 1) the alleged crime;
• 2) the impact on the election;
• 3) precedents;
• 4) whether this case or a potential conviction affects Trump’s eligibility for the presidency; and
• 5) what happens if he becomes president despite indictment(s) and conviction(s), including a potential Constitutional crisis.

Let’s get to it.

1) THIS is the crime Donald Trump might go to prison for? New York charged Trump with 34 repetitive counts of “falsifying business records in the first degree,” which is a felony under Article 175 of New York Penal Law. Trump’s actions were tied to shady use of $130,000 and illegal recordkeeping to hide an affair during a political campaign. If found guilty, he could face up to four years in prison.

If this does him in, of all the alleged crimes, it’s a little surprising and even disappointing. Let’s leave aside the potential crimes connected to his presidency — I’ll get to those later — but Trump has been adjacent to crime for literally decades. Here’s a 20,000 word Wikipedia entry called “Legal Affairs of Donald Trump.” He and his companies have been the defendants in about 1500 lawsuits. Fifteen hundred! Real estate, defamation, fraud, tax disputes, sexual harassment, sexual assault, you name it. Much of that came before he ran for president and is therefore generally unrelated to the motive of “political persecution,” which some seem to think is the only reason someone might investigate and indict Donald Trump. This has always been him. He is who we thought he was. Yet, that this crime might be the one to put him behind bars is almost frustrating.

That’s not to say that these aren’t charges that should be ignored. No one should be above the law, and there are reasons a grand jury indicted him.

Yet it’s hard to avoid thinking of the political factors at play. New York County District Attorney Alvin Bragg, a Democrat, stands to boost his career if he secures a felony conviction. It wouldn’t be the first time a DA tried to parlay a big case into a resume builder. Of course, Democrats point out that Bragg cannot secure an indictment unilaterally, nor can the government in general. The New York State Constitution, like the US Constitution, says that “No person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury.” In other words, Bragg can only ask for the indictment, but it takes a grand jury of fellow citizens to officially bring charges. Yet, even the grand jury itself pulled from the citizens of Manhattan, which voted for Biden over Trump by about 70 points in the 2020 election.

In other words, although our judicial process gives government officials and average citizens separate responsibilities, we still have an impossible time pulling apart politics from prosecution. But what’s the alternative? If a system exists to remove government officials and citizens from this process, I don’t know what it is. In the meantime, we should try to have faith in our fellow citizens to take their responsibility as fair-minded jury members seriously, even if they’re a member of the dreaded other party.

Still, although politics may have increased the chances that Trump would be indicted, politics is far from the only contributor. There is a LOT of smoke here. Trump and/or his campaign falsified records in order to misuse funds and/or cover up their actions. Perhaps the smokiest smoke is that Trump’s former attorney, Michael Cohen, has admitted to making the payment, and Cohen’s lawyer Lanny Davis says that the information provided by Cohen is supported by “substantial documentation.” And with Cohen found guilty and sent to jail for this and other crimes committed on behalf of Trump, it’s easy to see how Trump could follow.

Nonetheless, is paying money to keep an affair quiet, and making changes in bookkeeping to conceal the lie, really a felony? Democrats often talk about keeping non-violent offenders out of prison, but not this time. Instead, DA Bragg has used his powerful position to go for the felony conviction, even though he could have chosen to keep it to misdemeanors. Were it any other New Yorker he may have, but it’s hard to know. What we do know is he’s dreaming big, but as a result he’s sending us into a national nightmare.

2) How does all this affect the election?

There seem to be two schools of thought here. The smaller school is that an indictment is never good for a career. They’ve derailed plenty of others. If you’re enrolled in this school, you think that the mounting legal troubles will eventually convince a critical mass of Republican voters that even if they thought he was a good President and are open to re-election, it’s probably best for the GOP’s 2024 and long-term prospects that they move on to Ron DeSantis or some other Republican.

The larger school of thought, however, believes that the indictment is good for Trump. The thinking here is that Trump is at his best when he’s the aggrieved candidate, him against the world. If he can position his run as again standing up to the urban, coastal, media-friendly Democrats well embodied by a district attorney from New York City, he once again becomes the rallying point for the rural Republican Party. From this perspective, the indictment isn’t a mark of shame. It’s a badge of honor.

I’m here to tell you that both schools are wrong. My best guess is that the indictment has almost no impact whatsoever. We have so much evidence that supports the idea that Trump is locked into his support. Few in is base abandon him, regardless of the scandal du jour, and so his floor remains high. But we also have a mountain of evidence telling us that his ceiling is pretty low, at least until he becomes the clear nominee of the party.

I’ve written before that the 2024 Republican Primary has three general groups of voters: 1) “MAGAholics,” 2) “Never-Trumpers,” 3) “I’ll support him when I have to.” I don’t think getting indicted for concealing an inappropriate use of funds in order to win an election and hide an affair will in the least shake up those three groups. If two impeachments didn’t do it, neither will one indictment.

That said, I’ll tell you what is revealed by this indictment: that Donald Trump is still the man in the party. Did you notice how every other 2024 candidate came to Trump’s defense? In most elections across history, opponents would take advantage of moments like these. They’re politicians, after all, not moral arbiters fairly evaluating the events of the day.

But in this case, they simply can’t do it. Because they can’t lose MAGA. And until a candidate is prepared to lose MAGA, they’re not going to beat MAGA. It’s still Trump’s party, and he’s still the favorite. The indictment hasn’t changed that.

3) Historical precedents. You know me. I like history. I’ve considered some of the precedents we have to this story, and here are some of my favorites.

Remember when Bill Clinton lied under oath to cover up his affair? That’s not in a different universe than paying a lot of money and cooking the books for the same purpose. Should their political careers be derailed? I guess it depends on whether the guy’s in your party.

Oh, and remember when John Edwards had an affair while his wife had cancer? That’s not in a different universe than having an affair right after your wife gave birth to your child. Edwards also strenuously denied the affair despite the mounting evidence, and Edwards was also indicted for improperly using funds to cover up his actions during a campaign and faced years in prison. The parallels are strong enough that we should consider whether the result of that case is a guidepost for where this one is headed. Edwards was ultimately found not guilty on one count, with a mistrial declared on the other five. (Prosecutors decided not to retry the case.) Jurors were simply not convinced there was both an “intent to defraud” — which will likely be critical wording to find Trump guilty — and that the defrauding was attached to the campaign. In both cases, it could just be a husband doing what it takes to make sure his wife doesn’t find out about an affair. It might be a moral felony, but it likely tops out as a legal misdemeanor.

Oh, and remember Eugene V. Debs? Of course you don’t. You weren’t there. More about him below.

4) How does an indictment affect Trump’s ability to run for president? And what if he’s found guilty? And what if he goes to jail during the campaign?

These are all saucy questions, but in this case the sauce lacks seasoning. An indictment does not have any kind of legal impact on Trump’s ability to run for the presidency, nor would a conviction and jail sentence, were it to go that far.

That’s where our Eugene V. Debs precedent becomes relevant. Debs was four times the Socialist Party’s nominee for president — 1904, 1908, 1912, and 1920 — finishing in third, third, fourth, and third place. In the last of those runs, he won nearly a million votes, a remarkable feat considering he was in prison the entire time. Wanting to keep the US from engaging in World War I, he had made a speech discouraging young men from cooperating with the draft. He was arrested for sedition, found guilty, and in 1919 he was sentenced to ten years in Atlanta Federal Penitentiary, the place from which he ran his entire 1920 campaign. (In 1921, President Harding commuted the sentence.)

Relevantly, Debs vowed to pardon himself if victorious, which is exactly what Trump (who also wants the US out of Europe!) would do at 12:01 on January 20, 2025, were he to win the election from prison.

See, Republicans? Donald J. Trump is just like socialist Eugene V. Debs.

5) Short term, what happens next? And long term, can an imprisoned President Trump pardon himself?

The next in-person court appearance for Trump isn’t until December, so not only is this going to take a long time, but it’s going to run into the 2024 primary, which will officially start with the Iowa caucuses in February. Obviously we just have to see everything play out. There’s plenty of evidence pointing to Trump’s guilt, but District Attorney Bragg’s mountain-making out of a $130,000 molehill might leave him with a disappointing verdict.

That’s what’s so frustrating. Think about the other potential indictments connected to Trump’s presidency:

• He may have improperly stolen and stored classified documents at Mar-a-Lago and obstructed the investigation into these actions.
• He played the starring role in trying to overturn the 2020 election, culminating in assembling an armed mob and pointing them in the direction of the Capitol, at which point they broke in and people died.
• And, most acutely, he called Georgia’s Secretary of State and asked him to “find” enough votes to give Trump the win. And it’s on tape.

These are cases that warrant the most attention, because if proven, these are crimes that reflect a demonstrable disregard for our democratic norms, and such convictions would be disqualifying for the presidency, even in the eyes of many non-MAGA Republicans.

But instead, the pursuit of a less egregious crime that might ultimately fall short of conviction will strengthen Trump’s defense of these other accusations, at least in the eyes of voters. It’s as if winning the hush money case will give the Trump campaign antibodies to better fight off what’s to come.

The nightmare scenario, however, is that he wins the presidency in the middle of these charges or after he’s been found guilty of them and potentially sent to prison. There’s little doubt in my mind that, like socialist Eugene V. Debs, Trump’s intent is to pardon himself. If that occurs, I’m not sure any presidential act since Nixon, or perhaps since Lincoln, has more stretched our Constitution, potentially yielding a constitutional crisis. I’d consider it an egregious misuse of the executive branch’s authority and a breach of the entire justice system.

As political as the judicial process might be sometimes (as noted with #1 today), all the proper steps have been followed to help make sure politics can’t be solely responsible. A district attorney thought there was a case, then he collected evidence, and then presented that evidence to a grand jury of citizens, who agreed there was sufficient evidence for an indictment, and now a judge and separate jury will hear a case to determine whether there’s guilt beyond a reasonable doubt. Quite clearly, as we’ve seen with years of prologue on all these cases, none of this process has been rushed. If the Deep State wanted to do something extralegally, it could have been done. That’s not what’s happened.

Not one of Trump’s rights as an American citizen has been violated. Anyone arguing the process has been too politicized might essentially be arguing for a complete overhaul of the judicial process — that our system should neither trust nor empower neither government officials nor fellow citizens — but I’ve never seen the argument made in such terms. Everything that has happened is the way it’s supposed to work.

But Trump with a self-pardon pen at his disposal for each of these alleged crimes? That’s not the way it’s supposed to work at all, but nothing in the Constitution’s text forbids it. Article II, Section 2, which confers the pardon power to the chief executive, makes only one exception for pardons, and that’s in cases of impeachment.

And it’s not as if, back in the founding days, a self-pardon was unforeseen. In the debate over whether to ratify the Constitution, this possibility was anticipated by Virginia’s George Mason, who said the following (I’ll bold for emphases):

I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

-George Mason, June 18, 1788

With more than a little eerie clairvoyance, Mason predicted Richard Nixon, and he predicted Donald Trump.

To clarify that a president cannot pardon himself, it would probably require a Constitutional amendment. However, with so many states controlled by Republican legislatures and voters, that’s a nonstarter. Short of an amendment, a self-pardon could warrant a third Trump impeachment, but with so many Republican Congresspersons beholden to the Trump base, removal is again unlikely.

Let’s just hope it doesn’t go that far.