Make no mistake, America is now on trial

The American constitutional order is now on trial. With the indictment of a former president on criminal charges—including violations of the Espionage Act—we have entered a new political age. Our entire system of ordered liberty, a political culture built up over two centuries, and the future of our nation are at stake.

A decade ago, none of this would have been imaginable. Now, a crisis appears inevitable. What we now face is a challenge far greater than conducting a criminal trial. We face the daunting challenge of holding the nation and its political culture together as this process now unfolds. To make things worse, all this comes just as a presidential election looms before us. And, to make things worse still, the sitting president of the United States, who defeated then-President Donald J. Trump to win the White House, appointed the attorney general who appointed the special counsel who brought the charges—even as there is a good chance the two candidates will face off on the ballot once again.

Peter Baker of The New York Times explained the challenge succinctly when he wrote, “History’s first federal indictment against a former president poses one of the greatest challenges to democracy the country has ever faced. It represents either a validation of the rule-of-law principle that even the most powerful face accountability for their actions or the moment when a vast swath of the public becomes convinced that the system has been irredeemably corrupted by partisanship.”

The indictment is 49 pages long and includes 37 felony charges. Former President Trump dismissed the indictment as “ridiculous” and “baseless,” telling his supporters that the indictment is just another “witch hunt” and warning, “In the end, they’re not coming after me. They’re coming after you.”

But the indictment is neither ridiculous nor baseless. Jack Smith, the special counsel who brought the charges, is a skilled prosecutor. In bringing the charges against Mr. Trump, Smith released what is known as a “talking indictment,” meaning that the indictment explains the charges, offers some measure of public explanation, and reveals evidence. Smith’s talking indictment was a virtual shout. Our legal system will have to sort this out by the rule of law, but the evidence put before the public (including matters known before the charges were filed) presents a damning portrait of malfeasance, recklessness, bizarre showmanship, and likely obstruction of justice—all of which endangered the nation’s defense and risked international consequences. The evidence now known to the public, taken by itself, reveals the former president’s failure to guard the nation’s safety and security. It also reveals Donald Trump’s unwillingness to separate his personal interest from the nation’s interest.

This is not a witch hunt. On the other hand, there are other dimensions we also must remember. Here are the optics: Joe Biden and Donald Trump face off in the 2020 election. Trump loses the White House to Biden but then contests the outcome in an unprecedented series of actions. Fast forward to last Thursday evening, and a special prosecutor who serves as an extension of Biden’s Department of Justice brings almost 40 criminal charges against the man who, at this time, is also his most likely opponent in the 2024 election. So the sitting president’s administration will prosecute his former (and future) opponent who is also the former president of the United States. This might make for good fiction, but it is disastrous in real life. The world is watching.

But wait … there’s more. That same president (Mr. Biden) was also found to have retained classified materials after leaving office as vice president, some infamously found near the president’s prized Corvette. A separate investigation is looking into the Biden documents but with no hint as of yet of any charges. And what about Hillary Clinton, the defeated 2016 Democratic nominee who was found to have compromised national security by using an independent email server for thousands of communications, including many marked classified? The FBI recommended no criminal charges should be brought against Mrs. Clinton, and none were.

These considerations do not mean that the cases are equivalent, but it does mean that the burden of proof—in the court of public opinion as well as the court of law—is on those who brought these charges against Mr. Trump under these circumstances.

The editors of The Wall Street Journal are surely right when they declare, with due consideration given, “if prosecutors think that this will absolve them of the political implications of their decision to charge Mr. Trump, they fail to understand what they have unleashed.” Further: “The greatest irony of the age of Trump is that for all his violating of democratic norms, his frenzied opponents have done and are doing their own considerable damage to democracy.”

We can only pray that the American commitment to the rule of law lasts long enough and remains firm enough to get us through long months ahead. If we fail this test … God help us.