Former US President, and candidate for the presidency in 2024, Donald Trump has been indicted.
Trump retained thousands – possibly over ten thousand – documents which belong to the US government, some of which are classified.
This violates the Presidential Records Act. Worse, there appears to be taped evidence of Trump bragging that he took this material. Trump has suggested, rather exotically, that he could declassify material just by thinking about it. But this is pretty clearly a dodge.
Trump himself seems to realize this, and that realization – that he was roughly aware that what he was doing was wrong – likely opens him to prosecution.
Presidential Impunity?
Prosecuting, much less fining or even imprisoning, a former US president is unprecedented. Since the 1970s, an informal norm of US presidential latitude has evolved. In the wake of the Watergate scandal, President Gerald Ford pardoned disgraced ex-President Richard Nixon. This was widely criticized as a deal to give Ford the presidency (unlikely) and for establishing a precedent that presidents were above the law (more likely). Nixon himself famously captured the sense that presidents can mostly do what they want when he claimed that if the president does something, it is not illegal.
Post-presidential prosecution was debated again after George W. Bush’s second term ended in 2009. Bush had overseen an ‘enhanced interrogation’ program which was torture in all but name. Bush officials had also grossly overhyped intelligence about Iraq’s possible possession of weapons of mass destruction. This smoothed the path to the catastrophic invasion of that country in 2003. These events provoked some debate about investigations, but Bush’s successor, Barack Obama, choose to ‘turn the page.’ Still, some US officials from that period feared arrest if they travelled to other countries.
But Trump’s corruption of the office reached a new level, because it was so obvious. Trump famously admits in public to behavior which, before his presidency, would have ended any other politician’s career. Trump has a long history of sexual assault allegations. He used the White House to formally launch his election bid in 2020 (a massive violation of the Hatch Act which everyone just ignored). He directed government spending towards his hotel properties. He incited an insurrection against his own government and interfered in state vote-counting in the 2020 election.
Will a Conviction Hurt Trump in the GOP Primary?
If Trump is convicted on the various charges associated with this indictment, he will be a felon. He will likely be fined and perhaps even go to jail. This would introduce a remarkable new element into the 2024 election, indeed into American history. The questions would be unprecedented, even surreal:
Would an imprisoned felon be able to run for office? Would voters vote for this felon while he was in prison? Would he be able to take the office if he won? Would the law be changed to block this possibility? Would the GOP change its primary rules to prevent a felon or current prisoner from running in its primary?
In pre-Trump times, these questions were never addressed, because no modern presidential hopeful would have survived Trump’s history to still be viable. It speaks to the cultishness around Trump that he is still the frontrunner in the GOP despite all of this. Indeed, it is one of the most disturbing, authoritarian elements of Trump’s career. Around one-third of Americans find he can do no wrong and will vote for him no matter what he does.
In the GOP primary, then, it is hard to imagine that this latest hit will matter at all. Trump’s voters have long since accommodated themselves to his outlandish behavior and rationalized away his worst commentary. Trump is still far ahead of his nearest rival – Florida Governor Ron DeSantis. It is possible that a conviction might finally move the needle, but there is little in the last eight years of Trump polling to suggest that.
I have argued that Trump will defeat DeSantis, and I still think that is correct. Indeed, DeSantis’ chances worsen with every new Republican to join the primary. DeSantis’ only hope is to unite the anti-Trump Republican vote. Instead, it is fragmenting.
Will a Conviction Cost Trump the General Election in 2024?
This is the far more interesting question. If a conviction will just increase the GOP perception of a Trump as a martyr, then it is far more likely to doom Trump in the general. Trump may mobilize a cult-like allegiance inside the GOP, but he also activates a deep loathing outside it. And what Trump needs in 2024 is not to double-down on voters who already love him, but to win the voters who abandoned him in 2020 for the bland stability of Democratic then-candidate Joseph Biden.
2024 is shaping up as a rematch of 2020. As Robert Farley pointed out here at 1945 a few weeks ago, the previous loser in such a contest usually loses again and for the same reasons. A Trump conviction would just reinforce Biden voters’ perception that Trump is unfit. In short, this week’s indictment makes an already-likely Biden victory next year even more likely.
Expert Biography: Dr. Robert E. Kelly (@Robert_E_Kelly; RoberEdwinKelly.com) is a professor in the Department of Political Science at Pusan National University and 19FortyFive Contributing Editor.
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