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The Trump indictment and the rule of law on trial

Criminal charges against a former president represent political dynamite and unprecedented dangers


Donald Trump speaks at a rally in Waco, Texas, on March 25. Associated Press/Photo by Evan Vucci

The Trump indictment and the rule of law on trial

Here is what we know: Thursday, March 30, 2023, will be one of those dates etched into the history of our nation. Leaked information from Manhattan, instantly broadcast by major news networks and newspapers, indicated that a New York grand jury had voted to indict a former president of the United States. That fact, taken alone, underlines the historic nature of this development. In the entire history of our nation, no president or former president of the United States has ever been the subject of a criminal indictment. That is about to change.

New York County District Attorney Alvin Bragg, elected to that office in 2021, sought the indictment against the former president. For now, that document is sealed and we have no confirmed knowledge of what any count or counts in the indictment might be, though the case is related to “hush money” paid to a porn star in the midst of a political campaign. President Trump’s behavior was certainly sleazy, but was it criminal?

Americans often fail to understand how this dimension of our legal system works. In this case, once accusations had been made in public and an investigation had been concluded, the district attorney decided to present charges to the grand jury. The grand jury had to vote to hand down the indictment, and we are told that the vote occurred on Thursday. But the grand jury’s decision indicates only that the empaneled citizens decided that the D.A. had presented enough credible evidence to move to trial. That is no small thing, since it means that there will be an arrest, arraignment, and move to trial. At trial, the D.A. will have to prove beyond a reasonable doubt that Donald Trump violated specific laws by his actions. The defendant goes into the courtroom with the presumption of innocence. The defendant does not have to prove his innocence. The prosecutor must prove guilt. That is a high burden in this case.

The former president is currently the subject of several investigations, and any one of them could result in a criminal indictment. This indictment may well be the weakest of all likely prosecutions of Mr. Trump. Three previous prosecutors, including two U.S. attorneys and the previous D.A. did not bring these charges before a grand jury. Even allies of Mr. Bragg admit that he is operating on a “novel legal theory” in bringing this indictment. Bragg does not even have the assurance that a trial judge will find the charges credible.

Is this all about politics? Well, politics shows up every direction you look. The man to be charged is a former president of the United States and a current candidate for the Republican nomination for 2024. The district is a long-time Democrat elected to his own office in 2021. Politics bleeds through every dimension of this case. Will the indictment of the former president hurt or help his chances for renomination or reelection in 2024? That discussion has dominated the media coverage.

Prosecutorial discretion means that a prosecutor bears the responsibility to decide whether to bring cases to the grand jury. Alvin Bragg made that decision.

There are a couple of considerations that immediately come to mind. One is the honest question as to whether any citizen without such political status would be subjected to a criminal indictment on the basis of such a “novel legal theory.” A second question is similar: Is the cause of justice and confidence in the rule of law served by a district attorney in New York filing the first-ever criminal charges against a former president when the vast majority of citizens may not even understand the exact nature of the alleged crimes? Sleaze is sleaze but not all sleaze is criminal.

Some immediately argue that a former president must not be above the law. That is a credible argument but only if the charges have the ring of authenticity in the public’s mind. Alvin Bragg has taken a tiger by the tail, and even many Democrats worry that he has misfired—and badly. By some reports, Bragg will have to combine multiple accusations together in a constructed argument designed to avoid statutes of limitations and convince a jury of felonious behavior backed up with adequate admissible evidence. It takes that many words to offer a minimal explanation of what is at stake. In other words, this looks like a prosecutorial failure.

Of course, if this case proceeds, that decision will ultimately be made by a jury. But all this takes place in the context of a presidential campaign with unspeakably high stakes in terms of both history and the nation’s future.

Prosecutorial discretion means that a prosecutor bears the responsibility to decide whether to bring cases to the grand jury. Alvin Bragg made that decision. He bears sole individual responsibility for that action, and for the specific charges that will eventually be revealed.

President Trump bears responsibility for his own actions. In my view, America has been humiliated by his immoral behavior, recklessness, and incessant narcissism. Can a case on the grand jury’s indictment meet the burden of proof needed for conviction? Did he commit a crime? Time will tell. But that time is very expensive for the nation. In the meantime, the patent weaknesses of this prosecution pose far greater risks to the credibility of the nation itself. It is no tribute to the American legal system that a Manhattan DA brings this kind of case against a former president who is his political foe. Sources indicate that the main prosecutorial witness is a man who undoubtedly facilitated Mr. Trump’s sleaze but whose credibility is likely to be quickly shredded. Mark that up as a black eye for America as the world watches. And the world is watching.

We are living in strange political times and navigating unmapped territory. Christians are called to honor what is good and true, to seek justice and uphold righteousness. We believe in the rule of law and honor those who serve that cause. We must condemn wrongdoing—especially criminal wrongdoing—but we must also condemn partisan perversions of our system of justice.

I think most Americans, and certainly America’s Christian citizens, would want any president or former president to be prosecuted for crimes against the nation. But the charges had better be serious and credible, well understood by the public, and defensible before the world. The Manhattan DA is poised to make history, but history will judge his motives and credibility as well. The health and character of the American nation are soon to be sorely tried.


R. Albert Mohler Jr.

Albert Mohler is president of The Southern Baptist Theological Seminary and Boyce College and editor of WORLD Opinions. He is also the host of The Briefing and Thinking in Public. He is the author of several books, including The Gathering Storm: Secularism, Culture, and the Church. He is the seminary’s Centennial Professor of Christian Thought and a minister, having served as pastor and staff minister of several Southern Baptist churches.


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