While the moment of accountability has been speculated about and even anticipated, it would truly be crossing the Rubicon.
The question is, crossing into what.
Even some Trump critics have wondered about the wisdom of bringing this particular prosecution, which would apparently involve Trump lawyer Michael Cohen’s hush-money payments to porn star Stormy Daniels at the end of the 2016 presidential campaign to cover up an alleged extramarital affair that Trump denies; conversely, even some Trump supporters have acknowledged that his cavalier approach helped lead to his legal jeopardy.
We don’t know for sure that an indictment is coming. But with a decision around the corner, it’s worth running through the arguments for and against — both legal and practical.
Perhaps the most common pushback even from some Trump critics is that the first prosecution of a former president would involve a relatively small-bore charge.
Trump faces a number of potential prosecutions, including for his retention of sensitive government documents at Mar-a-Lago and for his efforts to overturn the 2020 election results based on false claims of voter fraud. The idea that the first charge would amount to a campaign finance violation is almost anticlimactic.
Another argument, which unites Trump partisans and some critics, is the precedent that this would set. It’s true that nobody is supposed to be above the law, but there are real-world implications in prosecuting a former president: The law of unintended consequences applies.
It’s valid to fear that this case would open the door to more investigations involving presidents and other political leaders — though that’s been on the rise already, and the rhetoric of “lock them up” has quickly become ingrained in our politics. It’s also difficult to avoid the fact that this prosecution would be brought by an elected Democrat, Alvin Bragg, just like potential election-interference charges in Fulton County, Ga., and just like the fraud lawsuit in New York state. There’s no getting around the fact that some prosecutors who have to make such decisions are elected officials, but that will always give some people pause. And some of these prosecutors have not done themselves favors when it comes to appearing to be above politics.
There’s also the prospect of a failed prosecution — the come-at-the-king issue. Imagine a Democrat bringing a case against a Republican former president for what might be considered the least of his crimes, and there’s no conviction. Trump’s claims to political targeting would suddenly be injected with new venom and potentially seem more plausible even to the Republicans who have strayed from him.
While such a prosecution would indeed be unprecedented in American history, just because something hasn’t happened before doesn’t mean it’s not just. We’re a young country with relatively few presidents — 45 — and the conduct of the others, as far as we know, hasn’t involved things like paying hush money to a porn star during a campaign.
Former presidents have faced legal problems, and one, Richard M. Nixon, even had an indictment drafted against him but was pardoned by his successor, Gerald Ford. It’s also true that most former presidents fade from the political scene, with only a handful, like Trump, running for office again. And while Trump allies have claimed that the pursuit of accountability is “third world” stuff, plenty of modern, developed democracies have prosecuted heads of state.
What’s more, the facts in the hush-money case are relatively simple, established and easy for people to understand. We also know that, among Trump’s many controversies, it ranked up there in terms of what people thought was problematic.
Nearly 8 in 10 Americans and a majority of Republicans said they thought Trump at least acted unethically when this was all over the news in 2018. In a poll last week, a whopping 73 percent of Republicans surveyed agreed that it was a crime to pay hush money to someone “to remain silent about an issue that may affect the outcome of an election.”
Most of all, it’s a cornerstone of our justice system that nobody is above the law — something Attorney General Merrick Garland often says. To the extent that the evidence against Trump is compelling, it shouldn’t matter that half the country could be outraged or even that some people might rise up. There are also precedents involved in letting someone with such power escape accountability. And bowing to those potential consequences could serve to reward Trump’s efforts to rile up his supporters and lodge his “deep state” conspiracy theories.
Trump skirted any real sanction during his time in office because of existing Justice Department policy against prosecuting a sitting president. But among other potential evidence of wrongdoing, special counsel Robert S. Mueller III found compelling evidence that Trump might have obstructed justice in several instances.
And you could certainly argue that lack of consequences had an impact, as evidenced by Trump keeping those sensitive government documents after leaving office and repeatedly failing to return them. Were he to get a pass on buying the silence of someone who posed a political liability — in a case in which the underlying crime has been proved in a court of law and Trump has been directly implicated — that would send a message as well.
Put plainly, this prosecution is no slam dunk. And it would apparently rest on a somewhat untested legal theory.
While we don’t know what the charges might be, it appears they would involve the alleged falsification of business records, which stems from Trump’s listing his reimbursements of Cohen as “legal expenses.” But that would be a misdemeanor, and it seems unlikely only misdemeanor charges would be brought. For this to be a felony, New York law requires the falsification to be related to some other crime or intended crime.
What precisely would that “predicate crime” be? We don’t yet know. But Just Security ran through a few options.
They include Cohen’s established federal campaign finance violation in which the Justice Department implicated Trump. Basically, this was failing to report spending $130,000 on something that aided Trump’s campaign. But it’s not clear that New York law allows for the related crime to be a federal one or whether it has to violate a state law. And Trump’s legal team has argued that, despite Cohen’s guilty plea, this doesn’t qualify as a campaign expenditure because Trump as a public figure would have paid Daniels the hush money regardless.
There are also a couple of state laws involving campaign finance and conspiring “to promote or prevent the election” of someone “by unlawful means.” But unlike in Cohen’s case, those don’t involve proven crimes. And there are some questions even then about the interplay between state law and a federal campaign.
No prosecutor wants to bring a case unless they are reasonably confident they will win. This is hardly a surefire prosecution. It’s also worth emphasizing that the Justice Department, which seemed to take care to implicate Trump in Cohen’s criminal act, never brought charges, even once Trump was out of office.
About the best argument for bringing these charges before — or even in lieu of — others is that the case involves a relatively simple set of facts and a proven crime. Withholding classified documents and trying to overturn an election involve weightier issues, but they also involve more subjectivity.
In Fulton County, Ga., and in the federal Jan. 6 probe, the courts would be asked to decide where to draw the line between questioning election results and breaking the law to overturn them — and likely to decide whether Trump truly knew better.
And while Trump’s retention of classified documents is pretty evidently more problematic than either President Biden’s or former vice president Mike Pence’s — and there is precedent for prosecuting such cases — it involves proving Trump deliberately flouted the law. A case involving a former president is also more complicated and fraught than previous prosecutions for a host of reasons.
In the hush-money case, we know several things:
- that Cohen paid off Daniels
- that Trump reimbursed Cohen while knowing what it was for
- that Trump lied about this and his aides offered denials that soon fell apart
- that there is evidence this was done with the campaign in mind
- that Cohen pleaded guilty to the campaign finance violation and that the Justice Department directly implicated Trump in it
- that there is a paper trail and audio to back much of this up.
It bears emphasizing that the Justice Department did not designate Trump as an unindicted co-conspirator, which would have been even more significant. (Some erroneously concluded that Trump was a co-conspirator after the Justice Department referred to him as “Individual-1,” but such a move would have involved more directly tying the unnamed individual to illegal activity.) And connecting the dots to prove a crime even with Cohen’s guilty plea is no cinch. But at least the baseline conduct is detailed and a matter of public record. It’s also possible that Bragg knows things the rest of us don’t that could be brought to bear at trial.
Also, while some skeptics have compared this situation to the failed prosecution of John Edwards — for obvious reasons given it involves a presidential candidate, an alleged affair, payments to a woman, and even the National Enquirer — there are significant differences. The Edwards prosecutors had a difficult time proving the offense was campaign-related, including because payment continued after the campaign ended. The Trump case could also include more authoritative witnesses.
And finally, there’s the fact that, however small-bore a campaign finance violation might seem, there’s a credible argument to be made that it could have mattered greatly. The 2016 election was so close that any number of factors might have laid claim to being decisive. Imagine a world in which we knew about this allegation shortly after the news of the “Access Hollywood” tape broke.
There’s no way of knowing whether things would have turned out differently, but this allowed Trump to obscure an ugly allegation for more than a year, before the Wall Street Journal broke the story in early 2018.
More than five years later, it could lead to the first indictment of a former president — and a series of reverberations.
