The case against Trump is neither trivial nor political. Is it enough to convict him? That’s what the trial is for

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The one thing nobody thinks to suggest is that he didn’t do it. Whatever other reactions the indictment of Donald Trump may have provoked, the one that does not seem to have occurred to anyone is:

It’s unthinkable! We are talking about a former president of the United States here. The idea that he would participate in any scheme to falsify business records to cover up an illegal campaign contribution in the amount of hundreds of thousands of dollars paid to not one but two porn stars to keep quiet about his extramarital affairs with them just long enough for him to fake his way through an election – that is just not the Donald Trump I know. Never mind that he would never have done any of these things. Had he even suspected that anyone in his employ was involved in anything of the kind he would have fired them on the spot and reported them to the police.

But that is not, you will have noticed, how Mr. Trump is defended, for all the hysteria the indictment has aroused. (Even north of the border: The National Post currently has no fewer than four articles on its website denouncing it.) His prosecution in a New York court on 34 counts of “falsifying business records in the first degree” is rather assailed on every conceivable ground other than his innocence:

• that he is a former president, and as such should not be subject to criminal prosecution, or at any rate that it is “unprecedented”;
• that the district attorney of New York, Alvin Bragg, is a Democrat, and that therefore the case is “politicized” or even “weaponized”;
• that the same district attorney has failed to prosecute other crimes in sufficient quantity, such as muggings and subway fare evasion;
• that it all happened years ago – 2017 to be precise.

Even Mr. Trump’s critics seem taken aback. Is this the case on which he should be brought to trial – this seamy business, with its porn stars and its icky sex scenes? Surely this is too trivial a matter. Surely the chances of conviction are too uncertain. Surely he should have been charged with something else, something more fitting – with conspiring to overturn the 2020 election, or inciting a violent assault on the Capitol, or absconding with top-secret documents, or tax fraud or obstruction of justice or taking money from foreign interests or any of a hundred other things.

To the objections of his defenders, first. That there is no precedent for the criminal prosecution of a former president is indisputable – but then, there is no precedent for much that has to do with Mr. Trump. It would equally be unprecedented for a former president to have done the things he is alleged to have done. The point of a trial is to find out if he did. To object to even putting the matter to trial, in the face of credible evidence that he did – his former fixer, Michael Cohen, pleaded guilty to having arranged the payments, and the coverup, at Mr. Trump’s behest – is to say that former presidents should be immune from prosecution, or at least that this one should be. Neither is consistent with any conception of the rule of law.

That Mr. Bragg is a Democrat is likewise not disputed. That is not enough, in itself, to demonstrate that the case has been politicized, or that this is a political trial – not in a system in which everyone and everything is either Democratic or Republican. If that were all it would be impossible to charge anyone with anything. To the extent the case has been politicized, it is mostly by those who seek to politicize it to Mr. Trump’s benefit.

That they have succeeded, however, is the price of the partisanship that has infected every corner of American society. The number and range of public offices in the United States, depending on the state, that are elected on party political lines is unmatched in almost any other country. This includes the system of justice, whose very purpose is supposed to be impartiality: district attorneys, like Mr. Bragg, judges, even sheriffs.

That might have been tolerable in the days when party lines were not so sharply drawn – when bipartisanship was in vogue and elected officials were willing, at least occasionally, to give each other the benefit of the doubt. In today’s hyperpartisan climate, however, that is impossible – and as always, it is the sharpest partisans who are the first to accuse others of partisanship.

The roots of this run deep. Barely 2 per cent of Canadians are members of a political party. By contrast, most Americans are legally registered as Democrats, Republicans or Independents. A Canadian might express their preference for one party or another by voting in an election; for an American, it is part of his or her identity. Further compressed, as now, by divisions of class and culture, and fired by the uniquely polarizing talents of Mr. Trump, that identity has hardened, particularly on the Republican side, to the point that Mr. Trump could, as he himself has claimed, “shoot someone in the middle of Fifth Avenue” without losing support.

Which means the accusations of “politicization” will not end with Mr. Bragg. Already Mr. Trump is attacking the judge (and the judge’s wife, and his daughter) in similar terms. Which means they will not stop with his conviction, either. He and his supporters will rather cite it as proof of how the system is stacked against him, to sow doubts about the validity of any subsequent proceedings.

All of which is a good argument for wholesale reform of the U.S. legal and political systems. It is not an argument against prosecuting Mr. Trump.

If not political, is it at least hypocritical? Can Mr. Bragg prosecute Mr. Trump for falsifying records and evading campaign finance regulations when he has declined to prosecute lesser crimes? The question is bizarre. It implies a binary choice: either he prosecutes both, or he prosecutes neither. But of course there is no such choice. The one has literally nothing to do with the other.

What about the passage of time – six whole years? Does that invalidate it? It might, if it brought the evidence into doubt, for example, or if it were otherwise inimical to Mr. Trump’s ability to get a fair trial. But there is no suggestion of that here. And the explanation for the delay is not hard to find. While Mr. Trump was president, the prevailing doctrine (conveniently) was that a sitting president could not be prosecuted. (That, you will recall, was the main reason former FBI director Robert Mueller gave, in his report on the Russian collusion matter, for not recommending Mr. Trump be indicted on obstruction of justice charges.)

Subsequent efforts to investigate at the state level were pre-empted by a federal Department of Justice investigation, which was then dropped. The previous district attorney of New York, Cyrus Vance Jr., retired with the investigation still incomplete; Mr. Bragg, on taking office, set it to one side for a time, and was only persuaded to revive it, he says, by new evidence.

That hardly bespeaks a show-boating district attorney launching a case on a wing and a prayer, as even some of Mr. Trump’s critics seem to fear. Prosecuting a former president – any former president, let alone one as divisive and dangerous as this one – is serious business, with enormous risks. If Mr. Bragg’s case falls apart, it will not only bring the administration of justice into disrepute with many Americans: it will destroy his career. It is hard to think he would undertake it lightly.

The notion that he would do so for the sake of a relatively “trivial” matter is particularly hard to take seriously. The indictments he has brought only look trivial compared with the extraordinary gravity of the other crimes of which Mr. Trump is suspected, and for which he may soon be indicted.

Forget the salacious bits. What Mr. Trump is accused of in the current case fits, as they say, a pattern: the solicitation of Russian assistance in the 2016 election; the attempt to extort the president of Ukraine into digging up dirt on his likely opponent in the 2020 election; the Jan. 6 plot. In every case, it involves the attempt, by illegal means, to interfere with or otherwise manipulate an election result.

And – again – it’s not either/or: either Mr. Trump is indicted for this business or the others. If it were – if the current indictment precluded subsequent, more serious indictments – that would be one thing. But that is not the case. He is almost certain to be indicted on all of them.

Does the evidence stand up? Is the underlying legal theory sound? Falsification of business records, ordinarily a misdemeanour under New York law, can be elevated to a felony if committed to conceal a violation of another law – but can that law be a federal law, like the campaign finance regulations? I’ve no idea. I’ve seen experts argue both sides. But I rather thought that was what a trial was for.

But let us not fall into the ultimate trap: of thinking that, unless Mr. Trump is actually convicted of a crime, he did nothing wrong. The presumption of innocence is a legal principle, as is the evidentiary standard of proof beyond reasonable doubt. They are, rightly, hurdles the state must surmount before it deprives someone of their liberty. They are not substitutes for reasoned inference; neither are they excuses for depositing our moral judgment in a blind trust.

And they are not the standard by which a former president, or a candidate for president, should ask to be judged by the public.