James Morrow: Donald Trump case a test of the US legal system

The US is now in uncharted territory – at stake is not just the freedom of the former president but the fundamental nature of America, writes James Morrow.

No matter the outcome of the criminal case against Donald Trump, the US is now in uncharted territory.

At stake is not just the freedom of the former president but also whether America becomes the sort of nation where the political party in charge is able to use the legal system to harass and perhaps even jail the de facto opposition leader.

Early reports indicated that Manhattan District Attorney Alvin Bragg, who ran for office on a platform of prosecuting Trump, would charge the ex-president with 34 charges of falsification of business records.

Soon after the details of the charges leaked before their formal unsealing Wednesday morning (SYD TIME) Trump lashed out on social media, saying, “Wow! District Attorney Bragg just illegally LEAKED the various points, and complete information, on the pathetic indictment against me … this means that he MUST BE IMMEDIATELY INDICTED.”

Normally this would be a misdemeanour, but Bragg bumped them up to Class E felonies, the lowest possible category of felony.

Donald Trump arrives at Trump Tower on April 03, 2023 in New York City. Picture: Gotham/GC Images)

“No one gets jail time for that as a first offender,” one law enforcement official was quoted as saying.

Alan Dershowitz, one of America’s most famous law professors and trial attorneys, said that the “high bar” of beyond a reasonable doubt will not be met in this case.

Dershowitz also said that a “Rubicon” had been crossed because the former president was being indicted by “functionaries” of the opposite party.

And more than one commentator noted the irony of the same Democrats who once defended Bill Clinton’s messy personal life as “just sex” pursuing Trump over how he accounted for hush money paid to adult film star Stormy Daniels over an alleged affair.

Even so in a legal system where process is often punishment, the unlikelihood of a conviction or even the fact that Trump was to be spared the indignity of handcuffs and mug shots is likely not to matter much.

New York County District Attorney Alvin Bragg. Picture: Kena Betancur

Because while the indictment may seem like a perverse vindication for Trump and his claim that the “swamp” or deep state is after him, strengthening his grip on the Republican nomination, it may also hurt is chances at moving back into the White House.

When Trump first announced two weeks ago that he thought he was going to be arrested, polls showed a much tighter race for the Republican nomination.

While in the middle of last month various polls put Trump between 12 and 14 points ahead of DeSantis that lead doubled as the former president’s day in court approached.

Attorney Alan Dershowitz, a member of President Donald Trump's legal team, says the indictment is unprecedented.

Trafalgar, YouGov, and InsiderAdvantage polls released over Sunday and Monday put Trump between 31 and 33 points ahead of DeSantis, leading to growing whispers in Republican circles that the Florida governor will sit next year’s election out and bide his time for 2028.

Yet if Trump leads the Republicans to the election, Democrats believe they have a much better shot holding power in 2024 versus DeSantis who presents as younger and, crucially, far more like a traditional, polished presidential candidate.

While Washington was initially hit with disbelief that Bragg might bring charges against Trump, with the consensus being that it was freelancing by a headline seeking prosecutor, a new theory has emerged that Bragg was tacitly encouraged by senior Democrats who saw the chance to essentially gift Trump the nomination and then take him down in the general election.

Even though this scenario sees Trump ultimately lose, it was at least partially backed in by the former president.

US President Joe Biden. Picture: Mandel Ngan

As the indictments were being prepared, Trump released a statement saying, “Remember, the (Department of Justice) is running the local Manhattan D.A.’s prosecution, they just don’t want their “fingerprints” on it. They placed a TOP person in the Office!”

Republicans are also keen to point out that Bragg also came to power with the help of George Soros, a Democrat financier who has backed a number of progressive district attorneys into power across the US who have later been accused of being politically biased and soft on violent crime.

Yet even if this is a Machiavellian scheme to ensure Biden goes up against Trump in the general election, the former president has a talent for confounding his enemies.

Given that in 2016 Trump was not supposed to win the nomination, much less his race against Hillary Clinton, it would be a risky strategy to say the least.