This Is Not the Trump Indictment That You’re Looking For

President Donald J. Trump talks to members of the press along the South Lawn driveway of the White House Tuesday, Sept. 22, 2020, prior to boarding Marine One en route to Joint Base Andrews, Md. to begin his trip to Pennsylvania. Official White House Photo by Joyce N. Boghosian [Public Domain]

News broke on Saturday that an indictment of Donald Trump might be imminent. The news came from Trump himself, who posted on Truth Social that the “leading Republican candidate and former president of the United States will be arrested on Tuesday of next week.” The former president referred to himself in the third person in an all-caps two-part post on Truth Social.

It wasn’t immediately clear why The Former Guy thought he was about to be arrested, but most speculation focused on New York District Attorney Alvin Bragg’s investigation into Trump’s hush money payoff to Stormy Daniels in the 2016 campaign. Former Trump lawyer and fixer Michael Cohen was scheduled to testify to a grand jury about the payoff earlier this month.

As the AP explains, Cohen paid $130,000 to Daniels and $150,000 to former Playboy model Karen McDougal (via the publisher of the National Enquirer) to kill stories about their extramarital affairs with Trump. The Trump Organization “grossed up” the amounts for “tax purposes” and reimbursed Cohen a total of $420,000. In 2018, Cohen pled guilty to eight counts, including causing an unlawful corporate campaign contribution and making an excessive campaign contribution at the request of a candidate.

Cohen went to jail for doing Trump’s bidding, but Trump himself was never charged. As George Washington University law professor Jonathan Turley explains, the Manhattan US attorneys, the Federal Election Commission, and Bragg’s predecessor as DA, Cyrus Vance, all declined to pursue the case against Trump because of its legal difficulties.

Under the current set of facts, Turley notes that the apparent charge would be falsifying business records, but that is only a misdemeanor and the statute of limitations is long expired. We are still within the statute of limitations for a felony, but the most obvious way to parley the falsified records into a felony is by tying them to election law violations. But again, the chance to make that connection has been passed over several times by federal prosecutors.

The connection is just a hard one to make stick in court. Did Trump order the payoffs because he wanted to influence the election or for other reasons? It is plausible to say that he wanted to keep the news of his affairs secret from his wife and family or that the scandal would have affected his brand.

In fact, back in 2012, Democrat John Edwards was acquitted of similar charges stemming from his own extramarital affair. The law on when payments for personal expenses become campaign contributions is murky, even if it seems blatantly obvious in the court of public opinion.

But all this is speculation so far. There has been no announcement from any prosecutor about pending charges. Even Trump’s own staff doesn’t seem to have any idea where The Former Guy got the idea that he is about to be arrested, as Maggie Haberman of the New York Times noted in a tweet.

Is it possible that Trump is gaslighting to stir up controversy and rally the base for his upcoming campaign kickoff in Texas next week? You’re darned tootin.’

Even if his prediction is wrong, he will have returned to the front page, generated contributions, and inspired Republicans to circle the wagons around him. An added benefit would be the letdown that Democrats will feel when nothing happens (much like the letdown that QAnon adherents felt when Trump was never restored to power and arrests of political opponents never started).

That hasn’t stopped both sides from jumping on the news, however. Democrats are in a celebratory mood while Republicans are fretting about the backlash if Trump is indicted. As usual, both sides are wrong.

Let’s take the Republican positions first. A frequent exclamation that I’ve seen from the MAGA right is that Democrats have weaponized the justice system and that prosecuting former presidents is something that third-world countries do. It’s un-American, they say.

Actually, the opposite is true. It would be un-American to allow politicians who commit crimes to remain unaccountable because of their (former) positions. In third-world countries, laws don’t apply to the elite. In America, however, not prosecuting a politician who broke the law would be un-American.

If we want to get into un-American behavior, we can also discuss Speaker McCarthy’s new investigation of the investigators, which doesn’t even wait to see if Trump’s claim of an imminent arrest is true. Elected officials should not interfere in ongoing investigations unless there is evidence of malfeasance.

Others fret about the potential for backlash if Donald Trump is held accountable. This isn’t the defense of Trump that they think it is. If Trump’s base and the Republican Party believe that Trump is infallible and untouchable, it becomes even more vital that The Former Guy’s crimes be brought to light. What this argument actually calls for is appeasing a radical minority by letting their leader run amok and disregard the law.

This point is especially important in light of Trump’s role on January 6, which is probably not going to be a legal issue in the current possible indictment if the pundit class is correct. Nevertheless, our unrepentant and lawless former leader’s post on Saturday sounds a lot like his “Stop the Steal” speech on January 6.

Having learned nothing except that he can get away with anything, Trump said, “We just can’t allow this anymore. They’re killing our nation as we sit back and watch. We must save America” [sic].

And by “save America,” Trump obviously means, “You must save me from jail.”

On the Democratic side, there is a tendency to grasp at any prospect of a Trump indictment, but, if you’d like to see Donald Trump pay for his crimes as I would, to paraphrase Obi-Wan Kenobi, this is not the indictment that you are looking for. If this possibly-looming Trump indictment depends on a novel legal theory that you have to squint your eyes just right to see, it’s probably not going to end well.

And if there is anything worse than stirring up the passions of the country with a controversial indictment of a major political figure, it is stirring up the passions of the country with a controversial indictment of a major political figure that is doomed to failure.

Think about it. Part of Trump’s mystique is the myth that he fights and wins. Yes, he made history as the first president to be impeached twice, but he survived both attempts to remove him from office. Now imagine if Bragg indicts Trump, takes him to court, and there is an acquittal. Or worse yet, the charges are thrown out.

As one of my favorite talk-show hosts, Michael Medved, used to say, “If you strike at the king, you’d better make sure you kill him.”

Now, I’m going to stress that the quote is figurative. Neither of us is calling for violence against Donald Trump, but what I really don’t want to see is Trump emerging from an indictment as a stronger figure. That is what would happen if Trump is acquitted.

If Trump is acquitted, there will be much rejoicing throughout the GOP as the disgraced former president’s mythos reaches new heights. His control over the party will be strengthened. Even some moderate and independent voters will see the acquittal as a vindication of claims that Trump was unfairly persecuted. He will be more likely to win in 2024. Most of us don’t want that.

I do believe that Trump has committed prosecutable crimes, but I am very skeptical that twisting his huh money payoffs into campaign finance violations is one of them. Prosecutors need to keep their powder dry and focus on the charges that are most likely to result in a conviction, not those that are most likely to generate headlines, book deals, and political notoriety.

Personally, I think that Trump is in far more legal jeopardy from other ongoing cases. In particular, there is the obstruction in the Mar-A-Lago classified documents case and the phone calls he made to Georgia elected officials seeking to “find” enough votes to overturn the state’s 2020 election results. There is now recorded audio of two phone calls made by Trump to Georgia officials and both have been heard by the Fulton County grand jury. I would be surprised if there were not evidence of more calls both inside and outside the Peach State.

There is also the ongoing January 6 investigation. Information is still emerging about Trump’s role in the riot and attack on the Capitol that includes evidence that the former president knew his claims of election fraud were false. Special Counsel Jack Smith’s investigation is underway and could result in the most serious charges that Trump could face.

I’m a firm believer that elected officials should not be granted special privileges. Justice in America should not depend on who you are or what your status is. At the same time, I think there is necessarily a high bar for the indictment of political figures because we need to avoid abusive prosecutions.

I do believe that Donald Trump has committed crimes and should be prosecuted, but I don’t want him to escape the most serious charges because a rogue prosecutor wants to make headlines. When a former president is prosecuted, the case should be airtight and the legal theories should be grounded in bedrock. I don’t think that either is true with Alvin Briggs’s case in New York.

On the other hand, I’m also still a bit skeptical that Trump isn’t just making the whole thing up. I’m not going to get worked up based on Trump’s social media postings just ahead of a rally. I’ll be surprised if an indictment is handed down this week, with or without an arrest, but I do believe that the wheels of justice are slowly turning.