The best reason for arraigning Donald Trump in New York this week is that he is guilty. It is possible that the jury might agree and he might go quietly to jail, thus being unable to return to the White House were he to be elected. That is a good reason, but it does not make it a wise one.
American justice is not political but it can be highly politicised. We won’t know until Tuesday afternoon what exactly Trump has been indicted on, but many assume he will face charges of falsely concealing “hush money” paid to the former adult film actor Stormy Daniels. The case was brought by an elected Democratic district attorney, Alvin Bragg. It comes more than six years after the alleged offence occurred, and at the start of Trump’s campaign for the 2024 Republican nomination for president. At the very least, this does not look coincidental.
Most observers had reached the view that Trump the politician was over the hill. His rallies were tired and his speeches meandering. New Republican hopefuls for 2024 were on the horizon, notably Florida’s Ron DeSantis and former vice-president Mike Pence, both of whom have publicly criticised Trump for refusing to concede the 2020 election. Continued reports of his many misdemeanours would surely lead Republicans to accept his days were over.
Legal analysis of this week’s case against Trump suggests there are serious obstacles in the way of his ending up in prison. A law professor and former prosecutor, Jeffrey Bellin, has pointed out that falsifying accounts can have numerous mitigating factors. Any judge and jury, even in New York, will be aware of the political perils of jailing an ex-president, not least for crimes ostensibly less awful than those for which President Nixon was excused. Were Trump to be on trial for interfering in the Georgia poll or inciting a riotous assault on the Capitol, it might be different. But Republicans find it hard to disagree with Trump’s claim that the New York case is a witch-hunt that amounts to “political persecution and electoral interference”.
Meanwhile, Trump’s team have treated the indictment as the best adrenaline boost a populist could ask for. It has given them a platform, an enemy and a cause. They even planned T-shirts with Trump’s mugshot on them. The Republican party’s belief in its hero might have waned, but now Pence and DeSantis have had to declare the trial “outrageous” and “un-American”, while the party’s leaders in Congress lined up to decry the “injustice”. This includes those who outspokenly opposed Trump’s challenge to his 2020 defeat.
Public opinion has vindicated this second coming. YouGov reports 57% of Republicans are now for Trump, against just 31% for DeSantis. A Harvard CAPs/Harris poll has Trump four points ahead even of Biden. The roughly third of American voters who had remained loyal to him now agree with DeSantis: the Democratic party has “[weaponised] the legal system to advance a political agenda”. As one southern churchgoer said with a smile when asked if she would still support Trump after the Stormy Daniels revelations: “We are all sinners, aren’t we?”
Trump’s political appeal has been built on promoting a boisterous self-confidence in defence of the huddled masses of “middle America” against the so-called liberal elites of New York and Washington. He contrasts “ordinary Americans” with the college-educated, media-driven, woke-obsessed lefties of the east coast and big government. He cries: “I am your warrior. I am your justice.” An ill-defined “they” are said to have stolen the 2020 presidential election and they mean to steal the next one. To Trump his trial is “straight out of the Stalinist Russian horror show”.
Democrats must now hope they can damage him on the stage of a high-profile legal theatre as they have not done before the court of public opinion. The strategy must be to see him exploit the trial sufficiently to see off the potentially more electable DeSantis but not enough to win a second contest against Joe Biden. In other words, they are reckoning on 18 months of personalised political viciousness, while the outside world struggles with the twin horrors of global trade wars and an escalating conflict in Ukraine.
The one salutary message to liberals of all stripes is that it is dangerous in any democracy to dismiss out of hand large numbers of those with whom they disagree. They will nurse their grievances unheard in provincial haunts far from the capital until, sooner or later, they find someone to sympathise with them, someone to listen.
This applies in Europe as in the US. As the psephologist Matthew Goodwin has pointed out, if Britain’s Labour party is to hold on to its lead it must beware of capture by groups such as those Trump derides: the graduates, the government-employed, the capital city-oriented. They made it “even easier for Nigel Farage, the Brexiteers, and then Boris to speak loudly and clearly to their instinctive desire for a more communitarian, nation-first brand of politics”. This brand has not gone away and remains the biggest threat to Keir Starmer. He need not agree with them, but he must listen.
A large number of Americans clearly like and trust Donald Trump. They appear to do so more than they trust a New York judge. This is alarming. It has presented not just the US, but the entire western political community with a potential crisis of leadership.
Simon Jenkins is a Guardian columnist
