The “Unprecedented” Indictment

The New York Times editorial board issued its proclamation.

Donald Trump spent years as a candidate, in office and out of office, ignoring democratic and legal norms and precedents, trying to bend the Justice Department and the judiciary to his whims and behaving as if rules didn’t apply to him.

As the news of the indictment shows, they do.

Do they? As of this moment, the indictment is sealed, the putative defendants unarraigned, the banner headline, “Trump Indicted,” reminiscent of the two times Trump was impeached which accomplished little if anything, what does this indictment show?

An indictment is merely an accusation upon probable cause as found by a grand jury. We assume we know what Trump was indicted for, although it’s possible there are things in there about which we’re as yet unaware. Regardless, Trump enjoys the presumption of innocence as does every defendant unless and until convicted. Whether he will be convicted remains a very real question.

Should the first indictment of an ex-president be under a novel legal theory that could be rejected by a judge or a jury? What do we make of the doubts about this case even among those who have zero sympathy for Trump? Does District Attorney Alvin Bragg know what he’s doing?

None of us can be sure of the answer to these questions until we’ve seen the evidence presented at trial, and I worry that a failed prosecution might strengthen Trump. Yet I’d also worry — even more — about the message of impunity that would be sent if prosecutors averted their eyes because the suspect was a former president.

Three other investigations remain open, each being for conduct far more serious and far more connected to the wrongs committed in office, no matter how incompetently performed. It remains possible that there will be an indictment, if not more than one, for this conduct during the pendancy of the New York County indictment. Should that happen, the significance of this indictment will fade. It will always be the first, but it surely won’t be the worst.

Then again, years have now elapsed since Trump left the White House for the last time. Prosecutors manage to indict swiftly when they want to, when it’s the “nobody” who isn’t above the law. The years of investigation without charges is stunning. It’s not hard to rationalize the delay, the efforts to be as thorough as possible, the desire not to jump the gun and pursue a prosecution that isn’t certain to result in conviction, the attempt to make a prosecution of a despised former president not smell like political retribution but the only possible product of a legitimate exercise of the police power.

But as many of us who despise Trump as the vulgar, narcissistic, deceitful, ignoramus that he is realize, this is not the case that will bring him down. The New York Times is wrong. This indictment does not show that Trump is not above the law, but feeds into the belief that New York County District Attorney Alvin Bragg, who is hardly a radical Soros-backed socialist, is pursuing a political indictment against a hated enemy of the left.

The question is not whether a former president is above the law. He is not. The question is whether the law should be dubiously stretched in various directions to take down a former president for what will, at worst, be a relatively petty offense unrelated to his conduct in office when there are three other potential crimes, far more serious, far more substantive and far more connected to the wrongs committed as president. I have no clue why there has been no movement by Fulton County District Attorney Fani Willis or Special Counsel Jack Smith (or his predecessor in prosecution, Merrick Garland), after all this time.

And yet, Trump has been indicted. So what?


16 thoughts on “The “Unprecedented” Indictment

  1. Skink

    I’ll wait for the guts of the indictment, but doesn’t there have to be more to it than what’s being said? Before deciding to seek an indictment, the state had to consider the fallout raining on professional reputations, the barrage of commentary on their every action since grade school and violent threats. Even six-finger, four-tooth Swamp critters would think hard before subjecting themselves to that by chasing what amounts to little more than shoplifting.

    I sure hope there’s more. Otherwise, I’m gonna be spending a whole bunch of time explaining this to non-lawyers.

    1. Nigel Declan

      Donald Trump has an uncanny ability to bring out the worst in both his allies and his adversaries, leading people who should know better to behave foolishly without fully thinking through the consequences. I don’t know enough about Mr. Bragg to suggest whether or not this applies to him, but many elected officials, journalists, etc. have made fools of themselves in order to prove how much they dislike the previous President. As such, I would not be surprised if the New York indictment is as flimsy as it seems because Mr. Bragg wanted the feather in his cap of being the first prosecutor to indict Donald Trump, though the proof of the pudding will of course ultimately be in the tasting.

  2. Hal

    My initial reaction to the news of Il Douche being indicted was a rush of delightfully intense schadenfreude as I thought about him doing the perp walk and how he’d look in an orange jumpsuit.

    Upon reflection, my feelings are very different. Since Scott’s post about how unlikely it was that someone other than Il Douche would be prosecuted for this same behavior my belief that “The law applies to all or it applies to none” has been at odds w/ my chronic TDS which causes me to see anything that embarrasses or inconveniences him as inherently positive. The numbers vary from poll to poll, but it appears that ~ 90% of Republicans feel this prosecution is unwarranted and politically motivated, well over half of independent voters feel this way, as do nearly a third of Democratic voters.

    OT1H, prosecutors should be guided by the evidence and not by political considerations. OTOH, this should be cause for concern, as it is crucial that people believe the justice system is essentially fair and just.

    1. norahc

      My popcorn futures are going to skyrocket, between this and when a Republican prosecutor inevitably returns the favor.

  3. Jake

    I look forward to all the thoughtful legal commentary about plans to ensure nobody, regardless of their individual power, wealth, and influence, is ever indicted by a grand jury under dubiously stretched theories of law again.

    1. Miles

      Like the way Scott has for more than a decade? Jake, this childish argumentation works better with children and the mentally infirm. It really has no place on a law blog.

  4. B. McLeod

    All his life he hasn’t followed the rules. In all the decades he was smart enough to keep his hat out of the ring and just give money to the Clintons and other professional pols, he always got a pass. If he was still doing that, he’d still be getting a pass. Hence it’s difficult to see the current pursuit as any kind of victory for the common citizen or the rule of law. Just more infighting among the aristocracy.

  5. Mike P.

    I can’t help but wonder if this could just be a set-up. I believe there’s more to this than meets the eye and don’t believe Bragg arrived at his decision to charge Trump without input from those whose pay grades are a lot higher up than his.

    I think once Trump is arrested, fingerprinted, and perp-walked he simply won’t be able to resist his juvenile urges and will direct his followers to further engage in violence, which will allow for more serious charges to be filed either in state court or by the feds.

  6. Ray

    I think the “so what” to all of this is the potential spectacle of an undending cycle of get even arrests and prosecutions of political leaders for political reasons. No one is above the law, but save the prosecutions for the big things, not the venial. Its like when Bill Clinton was impeached. Why? Does this all go back to that?

    Also, why keep giving him all the attention. Can’t people just let him fade away from the political landscape? Does anyone really think he is going to get elected again as President? He called for mass protests if he were to be indicted. I guess he was right, last night’s news showed maybe 7 or 8 people with Trump flags showing their support outside of Mare-a-Lago.

  7. Gus

    Half the country and probably three quarters of the leadership hate Trump with a passion. Few people will argue that he is a good person, although more will say that he was effective. But is that reason enough to upend the system with at best minor issues inflated into felonies?
    Consider the statue of limitations here, can anyone argue with a straight face that New York could not locate Trump during the past six years and so it had to be tolled? And both the Federal prosecutors and the FEC declined to prosecute the election charges here, but the city prosecutor who campaigned on an anti Trump platform has found that it is more worthy of prosecution than hundreds of violent attacks in the city? But it’s not political?
    Never fear though, as Pelosi said Trump will have an “opportunity to prove his innocence” in court – because we might as well toss out the presumption of innocence while we’re about all this…
    Consider also the Fulton County grand jury media tour. How can that be anything other than evidence of a biased jury, that was almost salivating at the opportunity to indict Orange Man Bad? Would you be happy to receive such justice for yourself?
    When justice becomes a popularity contest, there is no justice system anymore. I expect that this indictment will be taken as the ‘go ahead’ for conservative prosecutors to go after Democrat politicians as well. Will the people cheering this be as happy when a state prosecutor indicts Obama for murder in a drone strike killing of a US citizen overseas?
    When ‘we hate Trump’ becomes ‘get Trump at any price’, the price becomes our system of justice. And what happens when people believe that they won’t be treated fairly because of their political views?
    We have crossed the Rubicon and the view from this side is not so good.

    1. SHG Post author

      Nonlawyers should really stay out of lawyer stuff like statute of limitations, which has already been addressed here. As for the media tour of the foreperson of the special Fulton County grand jury, it’s completely irrelevant to the indicting grand jury. Save that stupid crap for reddit. Here, we don’t make people stupider.

Comments are closed.