Former U.S. President Donald Trump pumps his fist as he departs after speaking at the Conservative Political Action Conference, CPAC 2023, on March 4, at National Harbor in Oxon Hill, Md.Alex Brandon/The Associated Press
For four years he was a president without precedent. He now may be on the verge of becoming a former president without precedent.
The fresh indications that Donald Trump may be indicted in a Manhattan court could set in motion complex and consequential constitutional legal struggles. It also could throw the 2024 presidential election into upheaval and create new divisions in American civic life.
The prospect that the 45th president could face criminal charges emerged after Mr. Trump was offered an opportunity – which he is unlikely to accept – to appear before a grand jury. Such an invitation is an augury that formal criminal charges are being contemplated and may be forthcoming soon.
That development is a signal that Mr. Trump may be about to cross yet another frontier of political behaviour and political history. No American president has ever been indicted, nor has any former president. Though leaders of other nations – France, South Korea, Malaysia, Pakistan and Argentina, among others – have been indicted and some have served prison terms, American prosecutors and courts have been chary of taking legal action against the country’s presidents.
The proceeding grows out of a relatively minor, non-political matter and is consequential more for the precedent it may break in American jurisprudence than for the significance of the offence – the payment of US$130,000 in hush money to porn star Stormy Daniels, who said she had an affair with Mr. Trump. The former president has denied the allegations.
There is virtually no likelihood that Mr. Trump will be imprisoned for his actions in this case, and the political fallout from an indictment may redound more to his political advantage than to his legal vulnerability in this specific instance.
“As a master of deflection and disinformation,” said Jon Michaels, a constitutional law professor at UCLA, “Trump can be very effective, at least during the early stages of the indictments, in that he can tell a single story about ‘blue’-state Democrats unfairly prosecuting him.”
But if Mr. Trump is in fact indicted, a great, 234-year barrier will have been breached, potentially opening the possibility that he could be more easily charged in other, far more politically charged and historically significant cases.
These include cases growing out of his role in the Jan. 6, 2021, insurrection at the Capitol and his efforts, in Georgia and elsewhere, to bully election officials to “find” sufficient votes to permit him to prevail in the 2020 election. Mr. Trump’s greatest legal risk comes from special counsel Jack Smith’s investigation of his involvement in the Capitol rampage and his handling of classified material after his term ended.
“By now it’s no longer surprising that issues like this keep rising out of the miasma of Trumpworld,” said David Kennedy, a prominent Stanford University historian, who termed the case “a squalid affair” involving “some arcane statutes not easily comprehensible to the general public.” He speculated, however, that “this might just be one of those molehills that grows into a mountain.”
In all likelihood, though, the impact of the Daniels case may be more political than judicial.
Mr. Trump already has indicated that he would not abandon his third presidential campaign if indicted. “I wouldn’t even think about leaving,” he said at the Conservative Political Action Conference in Maryland last week.
“Probably it will enhance my numbers,” he said of the prospect of being indicted. He added that the district attorneys across the country who are investigating him were racists; the New York district attorney, Alvin Bragg, is Black. Mr. Trump has called the Justice Department, which has its own investigations under way, “the Injustice Department.”
Mr. Trump has claimed he is the victim of what he calls “the greatest witch hunt of all time,” and an indictment in the Daniels case would serve to buttress his claims that he is being persecuted for political reasons, a notion likely to inflame his supporters.
Even so, a case like this still has the potential of reaching the Supreme Court; in an arcane 1935 case about the sale of chicken, the high court dealt a serious blow to Franklin Delano Roosevelt’s New Deal. If the Daniels matter reached the court chamber, it would take its place alongside United States v. Nixon as a test of whether the separation of powers – a vital element of the U.S. constitutional system – would bar a judiciary-branch challenge to the executive branch. In that Watergate-era scandal, the high court ruled in 1974 that there were limits to executive privilege, the doctrine presidents customarily cite when resisting judicial orders.
In his famous 1776 pamphlet Common Sense, the revolutionary Thomas Paine wrote, “where, some say, is the king of America?” It was the question of the age, and of all of American history. “In America, the law is king,” he answered.
“We’ve stopped doubting that presidents lie, falsify records, conceal evidence, and obstruct justice – at least since the Watergate era,” said Amy Dru Stanley, the historian who leads the America in World Civilization program at the University of Chicago. “And likewise, we must recognize that a former president is not above the law – and that democracy depends on this principle.”