After two previous indictments, the novelty of prosecuting a former president may have worn off. But the latest criminal charges against Donald Trump represent an unprecedented stress test for the American political system.
Trump is accused of conspiracy and obstruction for trying to overturn his 2020 election loss, in a criminal case emerging at the same time he is asking voters to send him back to the White House.
The overlapping legal and political dramas represent a stark challenge for President Joe Biden just as he is running for reelection in 2024. Although Biden has made protecting democracy a cornerstone of his agenda and campaign, he also has pledged to respect the independence of the judicial process.
The result is that Biden probably will feel compelled to remain quiet about a court case that could send the leading Republican presidential candidate to prison, even though the charges hinge on behavior that Biden has described as an existential threat.
“That’s the posture that they’ve had, and that’s the posture they’re going to need to maintain,” said Patrick Gaspard, who served as White House political director under President Barack Obama. “Because there can’t be any political taint to the proceedings at all.”
Biden maintained a similar silence after the two earlier Trump indictments this year. In New York, the Manhattan district attorney charged Trump with falsifying business records related to hush money payments to a former porn actress. Later, federal prosecutors said Trump improperly kept classified documents at his Mar-a-Lago resort in Florida after leaving office and obstructed an investigation intended to reclaim them. The third indictment came Tuesday.
Trump, who pleaded not guilty in both cases, nonetheless is outdistancing the crowded field for GOP nomination. He also continues to spread the same lies about voter fraud that fueled the Jan. 6 attack on the Capitol, which interrupted the peaceful transfer of power from Trump to Biden.
Trump's ongoing refusal to accept his defeat increases the stakes in both the latest indictment and the 2024 election. An acquittal in the courtroom would solidify Trump’s reputation for dodging consequences. Victory at the ballot box — either in the primary or the general election — could build his brand of election denial.
Already, while more than 1,000 people have faced charges related to 2021 riot, just 16% of Republicans believe Trump acted illegally in connection with that day's events, according to polling from The Associated Press-NORC Center for Public Affairs Research.
Additional research from AP VoteCast, a nationwide survey of the electorate, found that 62% of Republican voters in the 2022 midterm elections believed Biden was not legitimately elected.
Ruth Ben-Ghiat, a history professor at New York University, described the widespread, ingrained lies as “uncharted territory” for a democracy.
“I’ve never heard of such success of mass deception on this scale,” she said.
Biden has left no doubt that he views the country’s democracy as hanging in the balance.
Rioters were still in the Capitol on Jan. 6 when he condemned the “unprecedented assault” that had forced lawmakers into hiding and delayed the certification of his election victory. With his inauguration still weeks away, Biden said “the work of the next four years must be the restoration of democracy.”
Biden went to the Capitol on the first anniversary of the attack to pledge that “I will allow no one to place a dagger at the throat of our democracy."
He targeted Trump again in a speech outside Independence Hall in Philadelphia as the country prepared for the midterm vote, saying his predecessor represents “an extremism that threatens the very foundations of our republic.”
“For a long time, we’ve told ourselves that American democracy is guaranteed, but it’s not,” he said. “We have to defend it, protect it, stand up for it — each and every one of us.”
Brian Klaas, an associate professor of global politics at University College London who studies democracy and authoritarianism, noted that Biden will continue facing blowback from Republicans for his Justice Department’s decision to prosecute Trump.
“In the long run, a much bigger risk is that the Trump era is not met with accountability for genuine criminal behavior,” he said. “You would set a standard that America will be stuck with forever.”
Biden has occasionally struggled to fully deliver on his pledges about democracy.
The president signed legislation intended to streamline the process for certifying elections, but he has been unable to make progress on national protections for voting rights. Republicans have been opposed and a few Democratic holdouts do not want to sidestep filibuster rules in the Senate.
Biden has also been erratic in promoting democracy abroad. He has held virtual summits on the topic, saying the world is “turning the tide” against authoritarianism, but geopolitical considerations have led him to take a softer touch in some situations.
His administration has sought a detente with Saudi Arabia despite Biden's vow to treat the country as a “pariah." He welcomed Indian Prime Minister Narendra Modi to the White House for a state dinner despite concerns about Modi's treatment of religious minorities.
Biden's allies expect democracy to remain a focus of his reelection campaign — there were images from the Jan. 6 riot in his announcement video. But they do not see a reason for him to break his silence on Trump's indictment.
“It all speaks for itself,” said John Anzalone, Biden's 2020 campaign pollster.
“Trump's very presence is a threat to democracy," Anzalone said. "As long as he's running for president, people will be concerned."
Trump could face more charges this month related to his attempt to overturn his election loss. A prosecutor in Georgia is investigating whether he broke any state laws there.
Anna Greenberg, a Democratic pollster, said she thought all the criminal cases will ultimately weigh down Trump even if his most dedicated supporters do not abandon him.
“People are going to argue, what’s another indictment?” she said. “But whenever the news is dominated by his troubles, it’s not good news for the Republican Party writ large.”
