Donald Trump: Could America’s Next President Serve Simultaneous Terms in Prison and the White House? – Former and potential future president Donald Trump has been indicted in a second case, involving his alleged improper retention of classified material and interference with the government’s attempt to reclaim it. The indictment, sought by federal Special Counsel Jack Smith and voted by a Miami grand jury, apparently has seven counts involving last year’s investigation and raid on Trump’s home to recover classified documents, some “top secret.”
Two months ago Trump was indicted by New York City’s district attorney on charges growing out of the former president’s payment of hush money to a porn star. And Trump’s conduct remains under investigation in Georgia, where the Fulton County district attorney is considering potentially wide-ranging charges for election interference after the November 2020 poll. Finally, Smith is investigating the former president’s role on January 6, 2021.
The latest charges against Donald Trump are significant. Yet his campaign efforts have not slackened. He proclaimed his innocence in the latest case and attacked “the corrupt Biden administration.” Indeed, he sought to turn the tables on his critics, insisting that the indictment was “election interference at the highest level.” He also turned his legal travails into a fundraising opportunity. This was similar to his response to New York City’s charges.
Again, several GOP competitors and leaders supported Trump. For instance, Florida Gov. Ron DeSantis declared: “The weaponization of federal law enforcement represents a mortal threat to a free society. We have for years witnessed an uneven application of the law depending upon political affiliation.” Sen. Tim Scott similarly warned of “the weaponization of the Department of Justice against the former president.” Entrepreneur and presidential candidate Vivek Ramaswamy promised to pardon Trump. Even Virginia Gov. Glenn Youngkin, who was elected by skillfully keeping his distance from Trump, opined: “These charges are unprecedented and it’s a sad day for our country, especially in light of what clearly appears to be a two-tiered justice system where some are selectively prosecuted, and others are not.”
It is hard to imagine any indictment as a campaign plus, especially when the government is claiming the conduct threatened national security. However, in the primary, at least, the latest charges will likely advance Trump’s victimization claim, encouraging MAGA Republicans to circle around his candidacy. To them, the alleged violations look partisan and discriminatory.
The first issue is Democratic and administration involvement in the prosecutions. Complained House Speaker Kevin McCarthy: “It is unconscionable for a President to indict the leading candidate opposing him.” Of course, there is no evidence that Biden was involved in the decision, but his appointees are overseeing the effort. Observed the Wall Street Journal, no fan of the former president: “Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in US history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President. This is far graver than the previous indictment by a rogue New York prosecutor, and it will roil the 2024 election and US politics for years to come.”
Moreover, Trump is not alone in apparently violating the law in this regard. Former vice president Mike Pence was found to have brought home a “small number of documents.” After leaving the vice presidency Joe Biden also possessed classified materials. Moreover, seven years ago the FBI concluded about the conduct of Secretary of State Hillary Clinton and her colleagues: “there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” Indeed, the list of miscreants found with classified documents at home but not prosecuted is embarrassingly long. Even though the differences among cases are significant, that might not seem so obvious to the public, and especially the president’s most fervent supporters.
For instance, Rep. Nancy Mace (R-SC) picked up on this apparent disparity in treatment, contending: “make no mistake, this is the executive branch tonight trying to take out their number one opponent for the presidency of the United States in 2024.” In her view: “Joe Biden just secured Donald Trump’s nomination for Republicans in 2024.”
The NYC indictment is even more dubious. Payment of slush money to a porn star is disgusting but that is not an illegal act on its own. Nor does Trump’s act look like an illegal campaign contribution, given his ill reputation and expectation that he would lose the 2016 election. Jonathan Turley, a liberal law professor at George Washington University, was scathing: “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 against Trump.” A previous attempt to prosecute former Sen. John Edwards on similar charges failed. He was acquitted on one count and the Justice Department then dropped the other charges.
Potentially more threatening are cases growing out of Trump’s irresponsible claims of election fraud and encouragement of the Capitol takeover by a crowd calling for the murder of the vice president. Yet appalling behavior is not necessarily illegal, and a primary electorate convinced that the 2020 poll was stolen is unlikely to give much credence to election-related indictments. Rather, they are likely to see additional charges as the deep state is piling on to keep Trump out of the White House.
Democrats hope that the cavalcade of criminal prosecutions will help persuade middling voters to reject the former president and prevent him from achieving a Grover Cleveland, the only person to win non-consecutive presidential terms. The classified document charges are likely to reinforce the distaste of suburban and other moderate Republicans who rejected him in 2020 and other GOP candidates last year. Moreover, at some point it might be difficult for him to wage a campaign. Indeed, leaving the race might become a factor in any plea-bargain. It appears that some Republican Party activists fear Trump’s increasing baggage will affect his electability.
Yet easing Trump’s path to the nomination in hopes that he will lose the general election is a dangerous game. Many Democrats thought his nomination in 2016 was political manna from heaven. Hillary Clinton went to bed the night before Americans voted expecting an overwhelming victory. Oops! With opinion polls gyrating wildly, President Joe Biden demonstrating bouts of incapacity, and the world seemingly on fire, no knows how the 2024 contest will turn out.
The political danger for Democrats is made more acute by the vagaries of the Electoral College. Trump won in 2016 despite a popular vote deficit of nearly three million. Four years later Trump almost won despite being more than seven million votes behind. With just a few score thousand additional votes in the right states he would have won. A rematch could go either way.
Donald Trump is not a sympathetic character. Presidents and other officials should not be coddled legally. To the contrary, a liberal order demands that those who misuse power should be held accountable. However, it also is important not to use criminal prosecutions to wage political war. And the potential impact on American republican institutions demands consideration. An indictment that looks partisan irrespective of its legal justification, like the latest charges, risks intensifying political division and conflict. More dubious claims, such as in NYC, inevitably discredit even better-grounded prosecutions elsewhere, such as the election-related cases.
Many Americans hope for a return to some measure of public normalcy when the temperature of politics across the nation was merely intermittently hot rather than constantly scalding. Unfortunately, the latest Trump indictments are likely to raise the temperature even further. And that has uncertain implications for next year’s election. The latest American Crisis is almost certainly going to worsen before it improves. Let us hope that now as then, “the harder the conflict, the more glorious the triumph.”
Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author of The Politics of Plunder: Misgovernment in Washington and a member of the California and D.C. bars.