Without precedent

Donald J. Trump has now been indicted and arraigned before a Manhattan judge by a Manhattan D.A. This is the most recent legal event in a life that has been filled with a substantial amount of litigation. In addition to the judicial wrangling involved in a long career as a real estate developer and celebrity personality, the former president endured two impeachments in the House of Representatives and two trials in the U.S. Senate. As history will record, both times the Senate failed to convict him.

Although the indictment of Trump has gained a great deal of notoriety, the personal stakes for the former president might be fairly low. The offenses alleged are not of a high level in nature and are unlikely to result in jail time even if he were to be convicted. Sen. Mitt Romney, a constant Trump critic, has questioned the district attorney’s process of bootstrapping a misdemeanor into a felony. Regardless, in the long view of our nation’s history, the unthinkable has happened. For the first time, an American president has been indicted and will potentially face a criminal trial.

What are we to make of the situation before us? The prosecutor, Alvin Bragg, campaigned on the issue of “holding Trump accountable.” While he did not specifically promise to indict Trump, the language goes right up to the line. What course of action would Bragg have been contemplating other than an indictment? That type of campaign promise is inappropriate to the task of the prosecutor. One could imagine a campaign promise to hold organized crime accountable, for example, without naming any individuals. But to name a single person and then to promise to hold them legally accountable via some kind of prosecution would seem to violate the norm of suspending judgment before a case could be developed.

In addition, there is the nature of the indictment. It generates 34 counts out of Trump’s alleged payment of fees to women such as Stormy Daniels to keep details of an alleged personal relationship (an affair) quiet. The indictment reads like a copy/paste operation. Paying such a fee is not illegal. The question is whether a campaign finance law was violated in the way records were kept about the transactions and depending on the reason for the transactions. If the payments were made for the purpose of the campaign, you tilt toward a violation. If they were made to avoid personal embarrassment, you tilt away from a violation. The motive is at issue.

What should happen from this point forward? There is a legal process that will unfold to be sure, but how do we interact with it as a society? The first and most important thing is that no one who is a juror, reporter, or judge prejudges the case in the way Alvin Bragg appears to have done in his campaign naming a single individual as a target of prosecution. But second, the indictment has happened and must proceed according to the rules. Perhaps because the person facing the justice system is a former president there is all the more reason for it to go forward. This is an excellent opportunity for our system to vindicate its promises with a defendant fully capable of defending himself.

Donald Trump’s team will argue for a dismissal of the charges. In so doing, they will be able to point to the nakedly political claims the Manhattan D.A. made in his campaign. A good judge will take that into account and will ask himself or herself whether sufficient substance exists to move forward into a trial where a jury will be able to judge questions of fact.

If the case does move forward, then the task of the judge will be to make sure that the defendant, Donald Trump, receives the benefit of every protection to which he is entitled. It will be especially necessary to protect against grandstanding or appeals to the jury’s political opinions. Likewise, for members of the jury it will be of the utmost importance that they confine themselves to answering questions of fact without allowing their personal feelings for or against the former president to move them.

While this case raises many political concerns about the prosecution of political opponents by partisans in power we have an opportunity to prove the value of our rules and those who enforce them. The important thing, when the case has been decided, is that every fair-minded person will be able to look at the final result and see justice rather than a political plot or publicity stunt.