The criminal indictment of former president and current presidential candidate Donald Trump is historic and unprecedented. It stands for the principle that, in the United States, no one is above the law.
At the same time, from the perspective of protecting U.S. democracy, the indictment is poorly timed. It would have been far better for the stability of our democracy if Trump had first been charged with crimes connected to his attempts to subvert that democracy by pressuring Georgia election officials to find more votes, not to mention interfering with the transfer of power on and around Jan. 6, 2021. If prosecutors in different jurisdictions consider it improper to confer with each other on timing, then Manhattan District Attorney Alvin Bragg should have waited for others to move first.
The relatively minor charges brought by the Manhattan district attorney regarding Trump’s alleged hush money payments to cover up extramarital sexual encounters do not target the core of Trump’s challenge to our democratic constitutional system. As a practical matter, they may even make it more difficult to prosecute him for more serious crimes.
The core of the indictment’s 34 felony charges against Trump relate to recording hush-money payments made via his attorney Michael Cohen as “legal fees.” Under New York state law, if you falsify your own business records, that’s a misdemeanor, a minor crime. To make it a felony, the government needs to prove that the falsification of the record was intended to commit and hide another crime. The indictment doesn’t say specifically what that other crime was. But the DA’s statement of facts seems to indicate that it was violating election law by hiding what was, in effect, a contribution to his campaign.
The first thing that makes those charges legally weak is that Trump can defend himself by saying he ordered the hush money recorded as legal expenses to avoid upsetting his wife, not to conceal the way the payments helped his campaign. That might sound like a shaky defense, especially because prosecutors can say that Trump’s efforts to delay payment until after the 2016 election prove it was about the campaign, not his marriage.
But it wouldn’t take 12 jurors to believe it. If even one juror believes it, then the jury would hang and a conviction would not be possible. Because it is vanishingly unlikely that the district attorney would attempt to retry Trump, the resulting mistrial would be almost as great a victory as would be an acquittal.
The further legal problem is that an appeals court might conclude that the underlying election-related crime can’t be the basis for a New York state crime because Trump was running for president, not for a New York state office. If so, an appeals court might conclude, Trump can’t be found guilty of a New York state felony based on an attempt to affect a national election. Even if Trump loses in the New York courts, he would be able to appeal his case to the U.S. Supreme Court, which might consider the issue one of federal law and reverse the conviction.
And not only may Trump potentially beat the charges, at trial or on appeal. He may be able to use those charges to create the impression among his supporters that he is a victim of politically motivated vendetta. In turn, that may make it harder for Georgia or federal prosecutors to bring and sustain much more serious charges against him.
It would be no small matter for the U.S. attorney general, serving under the Democratic president who defeated Trump, to charge Trump with a crime. No one, least of all Merrick Garland, wants to politicize criminal prosecution in our highly polarized political environment. The basis for bringing the federal charge would be that Trump had fundamentally threatened our democracy, providing a strong enough reason to overcome the presumption against a president prosecuting his predecessor from the opposite party who was also his leading opponent in an upcoming election. Trump will do everything he can to make such a prosecution look partisan. He will be able to use the New York prosecution as part of his argument.
If Trump is elected president again, there’s also the possibility that the Supreme Court could be called on to freeze or delay the New York prosecution. To see why, suppose that the Manhattan case has not yet been finally resolved by January 2025, when he would be sworn in as president. (The next hearing won’t even be until Dec. 4, 2023.) The sitting president would then be facing either criminal charges or possible sentencing after conviction or the prospect of an ongoing appeal of his conviction.
Trump could be expected to go to federal court and ask for the state charges against him to be dismissed or at least delayed until after his term ended. The basis for the argument would be that the president would not be able to govern effectively while facing the possibility of state prison time. He certainly could not govern effectively from behind bars.
When Bill Clinton was president, the Supreme Court rejected his request that Paula Jones’s civil suit be delayed until he was out of office, reasoning that the president is subject to the law and that he would not be unduly distracted by the case. It seems extremely unlikely that the current Supreme Court would extend that holding to a pending criminal charge. Their worry would be that, in the future, any prosecutor could charge a sitting president, thus enabling a local county official to interfere with the operation of the U.S. government.
Such a holding could create the extraordinary situation of a convicted or soon-to-be-convicted criminal serving as president of the United States. This would be an affront to the rule of law. Yet it would also be extremely problematic for democracy if any local prosecutor could place a sitting president in criminal jeopardy.
The upshot is that the timing of the hush-money charges against Trump might potentially putting our democracy in more danger, not less. No one should be above prosecution. But prosecutorial discretion, properly exercised, might have enabled Trump to be charged with his more serious crimes first, rather than muddying the waters of the criminal process as the hush-money charges may do.
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ABOUT THE WRITER
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
