All the President’s Charges: On Donald Trump and Pounding The Table

The last of four major indictments of Donald Trumpfinally dropped this week, assuming he hasn’t committed any crimes in the last 48 hours. While there may be future investigations into the sprawling election conspiracy, it seems like few are likely to involve Trump himself the way the Georgia and DC investigations have. It’s still early and there’s a lot to digest in just the previous indictment, let alone the new one. But perusing the commentary, I am struck by something:

No one doubts that Trump did all these things.

There are strong and sometimes quite reasonable arguments about the exact charges brought, whether a conviction can be secured, whether statutes are being stretched to fit the circumstances and what, if any, culpability Donald John Trump has in these affairs. But no one is really arguing that he didn’t do the things he’s accused of.

Let’s walk through the four major cases involving the 45th President of the United States.

• There is no dispute that Donald Trump paid Stormy Daniels to be quiet and then falsely claimed it as a business expense. There are very real disputes about whether the case has merit because of the statute of limitations. Bragg has argued that because this was done in furtherance of a felony — an illegal campaign contribution — the statute does not apply. But even Trump haters are dubious of this legal theory and a jury may not buy it. But no one doubts he actually did it, just whether he should be prosecuted for it.
• There is no dispute that Donald Trump stole public documents, mishandled classified info and, when offered a chance to make things right¹, engaged in a Keystone Cops caper to keep the info from his lawyer. We have pictures of documents stored in bathrooms. We have him on tape admitting he didn’t declassify any of it. We have video of his goons carting boxes around Mar-A-Lago. The video show them trying, and failing, to conceal what they were doing from the cameras. There are some arguments about whether the Espionage Act applies. But even his most ardent defenders admit this is the strongest of the four cases.
• There is no dispute that Donald Trump conspired to bring fake slates of electors to Washington and then have his Vice President either not count the electoral votes from seven states or swap in the fake electors. There have been some disingenuous arguments about free speech. Some slightly less disingenuous arguments about whether he got bad legal advice² or whether it’s a lie if you really believe it. But then again, we have documentation of him lying about what people said to him. For example, Mike Pence told Trump he wouldn’t overturn the election and then Trump told other people Pence was on board. But again, whatever the legal minutia, literally no one can claim that the fake electors didn’t exist, that the Pence Card conspiracy didn’t exist and that Trump wasn’t heavily involved in both. The most they can say is that when the President does it, it isn’t illegal.
• With the new Georgia indictment, it’s early and there are some arguments going on about the legal theories Willis used in her indictment. In particular, there are some acts Willis has identified that actually would seem to fall under the aegis of free speech and association. But there is no question that Trump pressured the Secretary of State to find more votes after the election was certified. There is little doubt that Trump’s people breached an election system. There is little doubt that they engaged in a campaign of lies and terror against Ruby Freeman and Wandrea Moss. No one is arguing none of this happened, just what, if any, laws were broken.

In light of this, it’s no surprise so much of the conservative commentary has focused on the supposed impropriety of indicting a former president or a man running for the presidency. This is, supposedly, stuff that only happens in third world countries.

Is this disingenuous? Of course it is. Bill Clinton was under investigation for his entire presidency, had his law license stripped and probably would have been indicted had the McDougals not clammed up. Hillary Clinton was under federal investigation for most of the 2016 campaign cycle and, rather than oppose it, the Republicans chanted, “Lock her up!” When the investigation was publicly re-opened three days before the election — an event that may have tipped the scales in a close election — the Republicans didn’t utter a peep. Trump openly pressured the DOJ to indict Biden. The Biden investigation had been going for two years by the time the election rolled around (and notably was not only left in place by Joe, but recently elevated to Special Counsel status). So no, none of this is really unprecedented. It’s just a matter of degree.

The reason we’ve never indicted a former or wannabe president before is that none of them engaged in such blatant criminality. Harding might have but he died in office. Nixon probably did but he had the decency (and intelligence) to resign and get pardoned. The closest we’ve had to something like this might be Spiro Agnew, who pled no contest to felony tax evasion and resigned.

And as for third world countries only doing this… Israel is prosecuting its sitting Prime Minister for corruption. Former French President Nicolas Sarkozy is appealing two corruption convictions. Former South Korean President Park Geun-hye was pardoned after serving five years in prison. Former Italian PM Silvio Berlusconi had been in court half his life. And that’s just among rich countries. There are many functional democracies that have prosecuted former leaders. I would argue that a functional democracy kind of has to if they’ve broken the law.

Part of this is the generalized hypocrisy that permeates all of politics and always will.³ But in this particular case, the “how DARE you indict a former/wannabe president” energy is juiced because … that’s all his defenders have.

There’s an aphorism about law that goeth thusly: “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.” Trump’s defenders don’t have the facts on their side. They may have some of the law on their side, but that quickly devolves into esoteric discussions of intent. So … they’re pounding the table. They’re clutching their pearls. They’re putting their hand to their brow and finding a fainting couch. It’s cynical and I don’t know if the American people will buy it. But it’s all they have. Because so much of this behavior has been open and blatant lawbreaking from a man who is, for the first time in his life, being held to account.

1. A chance most of us would not get.
2. Which does not exonerate you if you break the law. And Trump sought out bad legal advice until he found a fourth-string environmental lawyer who would give it to him.
3. I think part of this is also an effort to taint the jury pool. Trump’s main chance of acquittal is that a MAGAhead gets on a jury who believes that he can do no wrong and refuses to convict no matter what the evidence says.