With significant fanfare, Donald Trump was arraigned Tuesday in a New York City courtroom on charges relating to hush money payments made to former porn star Stormy Daniels. The former president is, of course, no stranger to controversy, which has been his calling card since he premiered on the political stage circa 2015. He now has the ignominious distinction not only of being the first president to be impeached twice, but also of becoming the first president to be indicted on criminal charges.
The latter distinction comes with an asterisk. In 1974, Richard Nixon was pardoned by his successor, President Gerald Ford, for his role in the Watergate scandal before any charges were brought. The decision to pardon Nixon was not a popular one at the time. Democratic U.S. Sen. Ted Kennedy, by then a presidential aspirant, decried the pardon in no uncertain terms.
Yet in 2001, Ford was awarded the John F. Kennedy Profile in Courage Award for his pardon of Nixon. Speaking at the event, Sen. Kennedy had reconsidered his opinion of the pardon: “I was one of those who spoke out against (the pardon) then. But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.”
Today, the question facing the country is a similar one, although we are left to react without the benefit of hindsight. We start with the uncontested proposition that no one is above the law, not even a former president. The two sides are divided, however, on whether the threshold for bringing charges against a former president should be higher, lest it usher in an era of tit-for-tat of political prosecutions based on trivial, but technical, offenses.
A crime is a crime, of course, but it’s impossible to ignore that prosecutors have considerable discretion in what charges get filed, or whether to bring charges at all. In Trump’s case, it will be a tough sell convincing the public that politics played no role in the charging decision. The reality is that a former president stands charged with nearly three dozen felony counts based on allegations that, though unseemly, most people wouldn’t have assumed were crimes. As it is, some commentators have questioned whether the allegations constitute a crime at all.
Recent history indicates that bringing weak charges against Trump is not an effective way of neutralizing his appeal. For example, if you were asked what Trump was impeached for the first time in 2019, there are a number of things that could spring to mind, from Russia-gate to Jan. 6. (The latter resulted in his second impeachment.) In fact, it stemmed from a phone call between Trump and Ukrainian President Volodymyr Zelenskyy.
During the “perfect” phone call, as Trump described it, the former president attempted to cajole Zelenskyy — who was not yet a household name — to investigate Joe Biden and his family in relation to their business dealings within the country. The House of Representatives subsequently voted to impeach Trump, but his trial foundered in the Senate, where he was acquitted. Trump claimed vindication, and his approval ratings were buoyed, even if temporarily.
This provides lessons for the future. First, liberals should be wary of using flimsy pretexts to make historic decisions, such as charging a former president criminally. How many Americans of a neutral political persuasion are likely to be convinced that this norm should be broken over a hush money payment allegedly made to a woman more than five years ago, especially when Biden’s Department of Justice declined to pursue similar charges?
Besides, there are other criminal investigations that appear far more damning politically to the former president. For instance, charges relating to election interference in Georgia, or the investigation into Trump’s conduct on Jan. 6, involve events that continue to rattle around in the public mind and are much more likely to resonate with voters.
The political fallout from all of this is an open question. In a prior age, a criminal indictment would have put the kibosh on a politician’s presidential ambitions. No longer. Trump has proved adept at portraying himself as the victim of political persecution. He has denounced nearly all attempts to investigate his conduct as “witch hunts.” After the FBI raided Trump’s Mar-a-Lago home last summer, several commentators wondered aloud whether the government’s zealousness would result in Trump’s reelection.
Trump’s legal team has been on a media blitz in an attempt at staying ahead of the news cycle. Since the indictments were announced last week, Trump has reportedly raised more than $7 million toward his reelection bid. It’s far from a given that Trump will secure the Republican nomination for president in 2024, but his job is made easier so long as he can turn alleged political victimization into fuel for his campaign.
Time will tell if Trump has, yet again, been rescued by his political adversaries.
____
ABOUT THE WRITER
Tyler Michals is an attorney in Chicago.
