Donald Trump remains an existential threat to the survival of US democracy

Donald Trump makes his way inside the Manhattan Criminal Courthouse in New York.

Donald Trump’s orchestrated efforts to subvert the will of the voters and attempt to overturn the result of the 2020 US presidential election, to effectively instigate a coup d’état, is the most serious and egregious charge that can be made against anyone who believes in democracy, freedom and the rule of law.

Trump’s long overdue indictment for a series of crimes relating to the last presidential election follows indictments for keeping boxes of classified documents at his Mar-a-Lago home in Florida and falsifying business records to cover up hush-money payments to porn star Stormy Daniels before the 2016 presidential election.

While not discounting the others, this latest indictment is the most significant because if the defeated president had succeeded, the US would have slid towards autocracy led by a demagogue. And there is still more to come, with Trump likely to face charges in Georgia after he was recorded pressuring officials to find him thousands of votes in the days after the 2020 presidential election.

Nobody, not even a president or former president, is above the law. This is a cornerstone of all liberal democracies.

Yet in December, Trump called for the “termination” of the US constitution as he again claimed Joe Biden was fraudulently elected President and urged his return to the White House.

Mike Pence, Trump’s former vice-president, said the indictment “serves as an important reminder” that “anyone who puts himself over the constitution should never be president”. Trump tried to force Pence not to certify the results of the electoral college on January 6, 2021 and overturn the election.

The indictment by a federal grand jury lists four counts: conspiracy to defraud the US; conspiracy to obstruct an official proceeding (the US congress’s certification of Biden’s electoral victory); obstruction of and attempt to obstruct an official proceeding, and; conspiracy against rights.

In previous columns on this page, I argued that Trump deserved to be indicted and would likely be guilty of violating at least two federal criminal statutes: conspiracy to defraud the US and obstruction of an official proceeding. (“Second Trump presidency a threat to US democracy”, July 27, 2022).

The weight of evidence against Trump is overwhelming. He was repeatedly told by advisers and officials in his administration that his claims of electoral fraud could not be substantiated and that Biden had won the election. Some have even testified that Trump conceded this to be true.

Supporters of US President Donald Trump enter the US Capitol on January 6.

Special Counsel Jack Smith makes it clear Trump was entitled to exercise his right to freedom of speech and claim, however falsely, there had been fraud and he had actually won the election. He was entitled to legally challenge the results, which he did. But he was not entitled to “pursue unlawful means” of discounting votes and subverting the results.

Accordingly, the indictment does not charge Trump with responsibility for the attack on the US Capitol but does say he exploited it. Nevertheless, remember what then Republican majority leader Mitch McConnell told the Senate about Trump’s culpability in the deadly and destructive riot at the US Capitol, following the then president’s second impeachment trial?

“There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.”

Trump can be entangled in multiple trials and still run for president. He could even be convicted and jailed for these or other crimes and still run for president. To be sure, Trump is using this indictment for political and financial gain. There is no doubt it has energised his already strong support among Republicans.

It has always been likely Trump would win the Republican nomination for president. His legal woes have done nothing to alter this. But these multiple indictments are likely to damage him in the election campaign. It is a turn-off for some Republican voters and especially for registered independent voters.

The legal strategy that Trump is following is also inexorably linked with his political strategy. He will struggle to defeat each of these indictments. But, if convicted and elected president, he can perhaps use the untrammelled presidential pardon power to quash any sentence.

Joe Biden

This remains untested and would be subject to Supreme Court challenge, where conservatives are in the majority. That is why, in the final analysis, only a defeat of Trump at the 2024 presidential election will ensure the future of the republic.

The US founders, through the Constitutional Convention, deliberated and devised a constitution and a set of legal institutions that had as one of its aims preventing anti-democrats and demagogues like Trump from undermining the electoral process. We are now seeing this system, designed principally by James Madison and Alexander Hamilton, work.

The prospect, though, of Trump being re-elected as president challenges the survival of this system. Trump has also shattered the norms and conventions of US politics; namely, the principle of the peaceful transfer of power embodied by George Washington, who retired after two terms. No previous US president, however upset at their defeat, sowed disinformation and discord like Trump.

Trump remains a disgusting, disgraceful, dangerous individual. He is the first US president to be charged with a criminal offence. Trump’s indictment for attempting to overturn the presidential election of 2020 will be one of the great trials of our time. It is imperative, for the survival of US democracy, that he is found guilty of these crimes and does not return to power.