(Image by Dave Wharmond, political cartoons.com)

Well, New York has gone and done it. They’ve indicted Donald Trump. Is that a good thing or a bad thing? 

On the one hand it’s great that someone had the guts to go after him. I have this nasty feeling, however, that this prosecution might be a mistake. We haven’t been given the details of the indictment yet. However, it has been much discussed in the media for the last few weeks. I watch a guy named Smerconish on CNN on Saturday mornings, and he has had guests several times discussing this potential prosecution. Their considered opinion seems to be that of all the cases potentially being brought against Trump, this one might well be the weakest case, and therein lies the problem.

This indictment is being touted as “unprecedented”. Which it is.  Never has a former president been indicted for any crime. But we shouldn’t read too much into that. According to Heather Cox Richardson, “it is not new for our justice system to hold elected officials accountable. Mayors have been indicted and convicted. So have governors: in fact, four of the past ten Illinois governors have gone to prison. Vice presidents, too, have been charged with crimes: Aaron Burr was indicted on two counts of murder in 1804 while still in office and was tried for treason afterward. And in 1973, Richard Nixon’s vice president Spiro Agnew resigned after pleading no contest to tax evasion to avoid prison time.” And speaking of Richard Nixon, it is likely that the only thing that saved him from an indictment was the fact that his successor Gerald Ford issued a pardon for any and all crimes Nixon may have committed against the US while he was president. 

Neither is it unprecedented if you look at the international scene. The former President of France, Nicolas Sarkozy was found guilty of election funding violations, and was sentenced to three years in prison. (Three years in prison was converted to one year of house arrest wearing an electronic bracelet.) Benjamin Netanyahu is facing charges in Israel, and he’s the current President.  Why should America be different?

So, although there is no precedent for indicting a former American president, there is lots of precedent for slapping down elected officials who step too far out of line. And there are lots of people lining up to slap him down.

I was under the impression that Trump was facing rape charges. That is wrong. A woman has accused him of rape and of battery, and is suing him for the battery and for defamation for what he said about her when her accusation became public. As far as I can tell, these are civil litigations, not criminal charges. And because they’re personal in nature, they are less likely to views as partisan in nature.

In Georgia, the Fulton County District Attorney has been investigating the infamous “find 11780 votes” phone call. In late January, the DA sought an order to keep her investigation report sealed because a decision on charges was “imminent”. Some eight weeks later, that imminent decision appears to be hanging fire. All I can say is “make up your goddamn mind and get ‘er done.” According to Reuters News Agency, “Trump may have violated at least three Georgia criminal election laws: conspiracy to commit election fraud, criminal solicitation to commit election fraud and intentional interference with performance of election duties.” These would be criminal charges, for which Trump’s only defence would appear to be a claim of Executive Privilege. This case would, hopefully, nail his ass to the wall. At the very least, it might define what the limits of executive privilege are. 

After the January 6^th riot, the House of Representatives issued a recommendation to the Department of Justice to charge Trump with corruption of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and inciting or aiding an insurrection. The Department of Justice has subsequently launched its own investigation into Trump’s accountability for the events of January 6^th. An indictment on charges arising from that event could be very meaty indeed. Recall that people died during that event. Trump has blood on his hands, and I sincerely hope that he is brought to court to face the music for his actions on January 6^th.

The Department of Justice is also investigating the retention of classified documents, including some Top-Secret documents in Trump’s home at Mar-a-Lago. The top-secret documents case has been fouled by the fact of documents having been found at the homes of Joe Biden and of Mike Pence. It leads to a “oh they’re all kind of sloppy about classified documents, so why are you prosecuting Trump?” dismissal of that issue. The fact that Trump appears to have knowingly and deliberately retained documents in contrast to Pence and Biden who cooperated with the FBI doesn’t matter. Any attempt to pursue charges in this matter will be dismissed by Trump and by most of his followers as another political witch hunt. 

Last, the State of New York has initiated civil proceedings against the Trump organization for fraud, suing for $250M and seeking an order to prevent Trump and his adult children from doing business in New York. Arising from the investigation into fraudulent actions in New York, the state has provided evidence to Federal prosecutors and to the IRS which might lead to criminal charges. It’s interesting to note that one of the Republican’s main targets in cost cutting is to defund the IRS so that they have no ability to investigate tax fraud cases.

The two civil litigations are less likely to be seen as partisan attacks. There is a portion of the US population which will think that $250M fraud is amusing, and they’ll dismiss it as “Trump being Trump” in a rather indulgent way. Similarly, even if Trump is found guilty in the defamation case, it is unlikely to hurt him much. His MAGA followers who were willing to overlook his tendency to grab women by the crotch are unlikely to be disturbed if he’s found guilty of shooting his mouth off over the rape allegation. As for the rape itself, it’s not part of the charges, and unlikely to become much of an election issue.

I would love to have seen charges arising from the Georgia election interference investigation, or from the January 6^th investigation, happening first. No matter which charges are brought, Trump will assert that it’s a politically motivated witch hunt. But in the case of Georgia, the cases would be brought by a Republican state government against a Republican ex-president, making Trump’s “politically motivated witch hunt” argument seem a little silly. Further, the case here appears to be strong in terms of what did and didn’t happen. It may well devolve to a legal question about whether a sitting President has any right to question the state officials as he did.

With the January 6^th investigation, Trump may well shriek about politically motivated prosecution if he wants, but I believe that the populace as a whole understands that January 6^th was not just a demonstration that got a little out of hand. People were killed. Damages to the building were fixed at approximately $2.7M. And the protests caused the first significant threat to the orderly transfer of power in the United States in generations. So, a Trump trial on these charges might well be divisive and highly charged, but probably never will they be seen as trivial. A conviction would be a political death knell.

Which brings me back, by a long road, to the Stormy Daniels indictments. What bothers me about this path forward?

Well first of all, numerous “experts” have opined that the case is weak. The New York Post says “the grand jury was considering indicting Trump under a state law against falsifying business records. That charge ordinarily is a state misdemeanor with a two-year statute of limitations, but under the reported theory it would be elevated into a felony by alleging it was done in commission of a federal campaign finance violation”, an approach that the Post referred to as “a novel legal theory.” Now mind you, the Post is a conservative newspaper disposed to present things in a manner designed to present Trump in the best light possible. Still, I have heard this same argument from people who are less obviously biased than the Post, and I shudder to think that a judge could throw the whole thing out before it really gets going if she doesn’t buy in to the novel legal approach that turns a misdemeanour into a felony.

Is the public upset at the notion that Trump had an affair with Stormy Daniels? No, not even a little bit. Kennedy survived allegations about Marilyn Monroe and numerous others. Clinton wasn’t badly damaged by the Monica Lewinski scandal. A few people will be offended, but most will regard the sexual impropriety as a trivial matter, and not even particularly surprising behaviour among the rich and powerful.

What happens if Bragg is successful and obtains a conviction? Probably not much. I understand that the maximum penalty is likely to be four years in prison, but let’s face it – that ain’t gonna happen. Even if they get a conviction on these charges, Trump will never spend a day in jail. No judge is going to try to send him to prison on a rinky-dink white-collar crime charge. So, he’ll get fined, or perhaps given house arrest like Sarkozy. That should really hurt the billionaire, right?

What happens if the judge dismisses the case? Part of the complexity of this set of charges (or at least what people assume is there, because the charges haven’t been revealed yet) is that it would involve trying Trump for a violation of Federal laws in a New York State court. There is a body of opinion that a judge might find that they really don’t have jurisdiction to try those charges, dropping the whole thing down to a misdemeanour charge on falsifying business records. The Republicans would just go nuts with the “partisan persecution” theme. They will scream “what possible motivation could you have had to bring this loser of a case in front of a judge? It’s clear evidence of the weaponization of the justice system.” And you know what? If that’s the outcome – if the case is so weak it can’t get past the first hurdle – the Trump apologists might actually be right.

What happens if the jury finds him not guilty? In my opinion, that’s what’s likely to happen here. How would you manage to select a jury that didn’t contain at least one secret MAGA maggot? Something like 25% of Americans are registered Republicans and about 40% of Republicans identify with the MAGA wing of that party. Therefore, in a jury of 12, there’s a reasonable statistical probability that one of them is strongly biased to finding Trump not guilty…and one is all he needs. So let’s say that the jury finds him not guilty. The “political persecution” cry goes up again, but it will be married to an egotistical, “See, I told you so. It’s beautiful. You can’t touch me. The great American people won’t let you touch me”. Sickening. 

I think this indictment, at least at this time, is a mistake. There’s too much to lose, too little to gain. This indictment might have been good, might have been successful, coming on the heels of indictments and/or convictions on the Georgia interference charges, or better yet on the January 6^th insurrection. If Trump entered the courtroom as a loser, he would be more likely to lose again. This case would make a great trailing edge of a snow-plow blade sweeping him off the stage, but it is the wrong case to be the point of a spear. I give the New York prosecutor all the credit in the world for following the evidence and trying to prosecute. I hope he’s successful. But I wish he had coordinated with the other jurisdictions and arranged to be third or fourth in line.