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Charging Donald Trump Could Blow Up in Democrats Face

Trump should be prosecuted for real crimes if the evidence indicates his guilt. However, leveling what look like political charges for political purposes will further threaten our republic.

Donald Trump speaking with supporters at a campaign rally at Fountain Park in Fountain Hills, Arizona. Image Credit: Gage Skidmore.
Donald Trump speaking with supporters at a campaign rally at Fountain Park in Fountain Hills, Arizona.

Would Indicting Donald Trump Help Elect Him President? – Donald Trump says he expects to be indicted. No word as yet from New York City District Attorney Alvin L. Bragg. If true, could this act propel Trump to the Republican nomination, and perhaps even back into the White House?

The Donald Trump Dilemma 

It is widely believed that Bragg’s office is planning to indict Trump for his alleged hush money payments to porn star Stormy Daniels. This doesn’t look like good news for the former president, but he seized the initiative by preempting Bragg.

If the DA surprises everyone by not indicting Trump, the former president will look strong, having faced down a lefty prosecutor. If Trump is charged, he will have shaped the story to his political benefit.

No doubt, many Democrats, and probably a fair number of Republicans, especially on Capitol Hill, hope for an indictment. For any normal candidate such a charge would kill any presidential prospects. Democrats don’t care how the deed is done. Numerous Republicans agree, so long as their fingerprints aren’t on the political murder weapon. Indeed, if an indictment forced Trump from the race, the same GOP paladins would shamelessly stir the base by publicly criticizing this outrageous political prosecution while privately toasting his absence from the ballot, where he likely would drag down the rest of the ticket.

Alas, this result isn’t likely. The first problem is the charge itself. Targeting Trump’s odious behavior on January 6th would demonstrate a desire for government accountability rather than partisan advantage. Focusing on a possible affair, not so much. The charge appears to be that he violated election laws by paying Daniels not to reveal their affair in order to bolster his electoral prospects. This is more than a stretch, an elastic interpretation for which leftwing lawyers and jurists are famous. A “living Constitution” means they believe it means what they believe it should mean. Similar, it appears, is their attitude toward the law.

This case was rejected by federal prosecutors and the Federal Election Commission. And rightly so, in the opinion of George Washington University law professor Jonathan Turley, who wrote: “the New York case would be easily dismissed outside of a jurisdiction like New York, where Bragg can count on highly motivated judges and jurors. Although it may be politically popular, the case is legally pathetic. Bragg is struggling to twist state laws to effectively prosecute a federal case long ago rejected by the Justice Department.”

The biggest problem might be factual. Revelation of an affair with Daniels probably wouldn’t have cost Trump the election. In 2016 a cascade of revelations of dubious behavior didn’t prevent his victory. Moreover, he apparently didn’t expect to win that race, which means he had no election-related incentive to pay hush money. Rather, Trump had other reasons to cover up an alleged affair, including preserving his marriage. As a result, the greatest legal danger for Trump, suggested Turley, would have been the former president’s temptation to lie, allowing a perjury prosecution, as with President Bill Clinton.

Although Trump’s critics might believe that even a flawed criminal charge will do if it keeps him from returning to the Oval Office, the charge might do the opposite. A weak case, dissected by independent legal analysts like Turley, would reinforce Trump’s claim that Bragg is playing politics, not enforcing the law. That would help fire up the former president’s base.

Indeed, in announcing that he faced likely indictment he called on his followers to come to his aid: “PROTEST, TAKE OUR NATION BACK!” Before the day ended, he sent out a fundraising email that declared: “There truly is no low, no witch hunt, that the radical Left, the Deep State, and the globalist cabal won’t use to try and destroy our MAGA movement.” He is only just beginning to paint a vivid picture of the demonic forces arrayed against him.

This tactic will influence more than MAGA believers. Trump’s announcement was enough to cause Speaker Kevin McCarthy, a Trump critic in private but sycophant in public, to issue a tweet announcing plans to investigate whether federal money is being used for “politically motivated prosecutions.” Elise Stefanik, the House Republican Conference Chair, declared: “This is unAmerican and the radical Left has reached a dangerous new low of Third World countries. Knowing they cannot beat President Trump at the ballot box, the Radical Left will now follow the lead of Socialist dictators and reportedly arrest President Trump.”

Undoubtedly, many more GOP officials and leaders nationwide will follow suit. Some out of conviction, but most out of fear that Republican primary voters will treat support for Trump as a loyalty test. Additional attempts to separate the party from Trump after the disappointing 2022 midterm elections will likely go aglimmering.

Moreover, an indictment tied to sex could cause even some critics to defend him, albeit reluctantly. Although Clinton was charged with perjury, many Americans believed his tacky sexual behavior in the Oval Office was worthy of condemnation but did not present legitimate grounds for prosecution. Despite the enormous disgust felt even by many members of his own party, most rallied around him. In fact, in his impeachment trial, five and ten Republican senators, respectively, joined Democrats in voting to acquit him on the charges of obstruction of justice and perjury. The perception that these were essentially sex charges doomed the prosecution.

Bragg might be playing a deeper political game, indicting Trump in hopes of delivering the presidential nomination to the former president and tying the Republican Party to him in the 2024 elections. If that is the district attorney’s intent, however, he is taking an enormous risk. Trump could win, and is more likely to do so if it appears that Democratic partisans are using the criminal justice system to punish their opponents. Although Democratic Party meddling in the 2022 GOP primaries, promoting election-deniers and other assorted loons, cost Republicans some races, many of the results were close and easily could have gone the other way.

Even if no one is playing politics, few people, especially MAGA warriors, will believe that. The “red-blue” battle will intensify. And do so over charges which are dubious at best and an abuse of the criminal law at worst.

Before taking this momentous step, Bragg should consider the likely impact of his action on America’s deeply divided society. Trump should be prosecuted for real crimes if the evidence indicates his guilt. However, leveling what look like political charges for political purposes will further threaten our republic.

It is worth recalling Abraham Lincoln’s heartfelt conclusion to his first inaugural address: “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

So it is today as well.

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A 19FortyFive Contributing Editor, Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire.

Written By

Doug Bandow is a senior fellow at the Cato Institute, specializing in foreign policy and civil liberties. He worked as special assistant to President Ronald Reagan and editor of the political magazine Inquiry. He writes regularly for leading publications such as Fortune magazine, National Interest, the Wall Street Journal, and the Washington Times.