Here’s the paradox of Donald Trump’s deepening legal jeopardy. It is perfectly reasonable to believe that the former president is a seriously bad man, a crook and a threat to the constitutional order of the United States, and to believe simultaneously that the proliferating criminal charges against him are a grave injustice, a dangerous abuse of executive power and, above all, a profound error.
In fact, I would argue that the latest indictment this week over his attempts to overturn the results of the 2020 election marks a watershed moment, a Rubicon the American political class has crossed, that will make any kind of restoration of constitutional normality more or less impossible.
Trump’s refusal to accept his defeat three years ago was an unforgivable offence. But the effort by Joe Biden’s administration to imprison him for his behaviour is worse than a crime. It is a calamity. Let me try to explain.
His latest arraignment in a Washington courthouse takes the number of charges Trump faces to 78 (you can count them on a handy indictment tracker on CNN, which updates them with great relish like the latest score in the Test match).
Former President Donald Trump pleads not guilty to four federal charges stemming from his efforts to overturn the 2020 election https://t.co/pyWdcMoulnpic.twitter.com/Uo04zS7MKd
— CNN (@CNN) August 3, 2023
But the case brought this week by Jack Smith, the special counsel appointed by the Biden administration, unlike the previous allegations of mishandling government documents or misstating financial records of the Trump Organization, goes to the very heart of the man’s presidential record and character.
Since what I’m about to say will leave some readers thinking I’m a Trump apologist, I should repeat: his conduct after the election was indefensible, a betrayal of his oath of office and an abuse of power. It was a naked attempt to remain in office after losing an election that, whatever the questionable ways it was conducted in the middle of a pandemic, never produced any clear evidence of outcome-determinative fraud.
But was it a crime? The central problem with the case against Trump is that it rests on the assertion that he knew the election had not been stolen but proceeded with devious efforts through aides to have it overturned, using a series of abortive cockamamie faux-constitutional ruses, the last of which was to have Mike Pence, his vice-president, on January 6, 2021, declare certain states’ votes null and void.
Smith adduces instances where Trump seems to acknowledge the lie. “You’re too honest,” he tells Pence at one point. One plan his aides come up with Trump describes as “crazy”.
But proving, by somehow truffling through the rag and bone jumble that passes for Trump’s mind, that he knew the election hadn’t been stolen is not easy. Everything we know about Trump suggests that, whatever the truth, he almost certainly did believe he had won. The man’s ego is so large, his self-belief so invulnerable that I don’t doubt for a second he thought and still thinks he prevailed. He probably believes he discovered penicillin and wrote Chopin’s Piano Concerto No 1 for that matter.
In the end his schemes all came to naught; and it’s important to note that he is not being charged for persuading supporters to riot at the Capitol on January 6. Prosecuting him for floating madcap ideas is legally dubious and politically reckless.
As it happens, the framers of the constitution created the appropriate forum and sanction for disgraceful presidential behaviour - the impeachment process. And Trump was impeached by the House of Representatives for “citing insurrection”. Only the political cowardice of most Republican senators - not enough of whom voted to convict him in February 2021 and thereby bar him from ever running for office again - enabled him to get off. But now the Biden administration wants to use the criminal process to carry out the job Congress failed to do.
It’s no mystery why every Trump indictment only makes him more popular, despite the anguished looks on the faces of puzzled BBC reporters as they try to explain it. The pursuit of him reaffirms what made him an improbable tribune of the people in the first place. A large number of Americans have been in revolt against what they see, with much reason, as an entrenched elite with control over all the main levers of legal, cultural and economic authority who will stop at nothing to prevent challenges to their rule.
Their suspicions are deepened when they watch as evidence grows that the Biden administration itself has been suppressing legal efforts to have Hunter Biden, the president’s son, held properly accountable for alleged criminal activity. Just this week new testimony emerged from congressional hearings that suggested Joe Biden was well aware of and willing to be used as bait for Hunter as he successfully sought millions of dollars from foreign government-connected companies while his father was vice-president.
This is not to suggest a moral equivalency between any involvement by Biden senior in his son’s nefarious activities and Trump’s efforts to subvert the constitution, but the failure of federal investigators, along with a complaisant media, to delve deeper into the Bidens’ murky business dealings only cements the belief in millions of voters’ minds that the system is rigged.
No one is above the law, we are told. But if dwindling public faith in the system is to be upheld, the prosecution of a political opponent by an incumbent government must meet the highest standards of evidence and rely on the most watertight of legal theories.
The Biden administration’s prosecutorial zeal has raised the stakes not just for the former president himself, but for the entire US constitutional settlement. The jolt it delivers to Trump’s support only reinforces the ominous sense that the country’s future will be determined, not by the complex and balanced machinery of due process, justice and the law, but by the brute struggle of raw political power.
The Times
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