With only two days to go, the midterms are currently the center of the American political universe. To many, these elections are the defining battle of the year and are likely to determine Biden’s political future; should both the House and Senate return to Republican control (as almost all forecasts currently project), the president will be unable to pursue the remainder of his legislative agenda.
At risk of stating the obvious, the midterms matter. The makeup of Congress over the next two years will heavily influence what Biden and his party will be able to accomplish. Big plans on abortion rights, gay marriage, voting rights, and further climate action remain unfulfilled, and all four will require healthy democratic majorities to become law. Any potential Supreme Court nominations by Biden will also likely fail without a blue majority in the Senate. And perhaps even more importantly, the makeup of Congress will determine the tenor and momentum of politics. Will Biden be stuck with an intransigent and obstructionist legislature, and thus pursue more aggressive executive action? Or will Democrats surprise everyone and march into the 2024 cycle with a stable grip on two branches of government?
Again, most forecasts have the GOP winning big on November 8th. This has many on the left somewhere between panic, despair, and resignation.
Ultimately, though, midterms come and go.
There was always a very strong chance that Biden would only have two years of unified government – that is how this game usually works. And while the 117th Congress fell short of its initial grand promises, it (and by extension the president) accomplished quite a lot: massive Covid relief, a major infrastructure bill, a Ukraine lend-lease scheme, gun control legislation, the CHIPS act, and a historic bill to tackle climate change. Seriously, Democrats can be satisfied with what they were able to accomplish in power. They didn’t pull off FDR or LBJ levels of lawmaking, to be sure, but they had an impressive two years, nonetheless.
What happens this year can truly change the course of the decade. But to see how much we stand to win or lose, we must fix our gaze elsewhere, onto a different set of decisions.
Unfolding far from the campaign trail, in hallways and courtrooms, offices and emails, representatives of the American justice system are deciding whether or not to indict former president Donald Trump. This decision matters much more than the midterms, in part because its outcome supersedes the regular oscillations of opinion. Indeed, whether or not Trump goes to court may serve as the final verdict on the health of America's institutions of government.
The story of Trump’s legal troubles has popped in and out of the headlines, but for the most part it has faded into the background as the midterms take up more and more attention.
So before I go any further, let me briefly outline the legal troubles I am referring to. At the moment, Trump face four principal challenges.
One, New York. Here, prosecutors are looking into the financial dealings of the Trump Organization. There is one civil case and one criminal case against the company, but both largely focus on the same issue, namely whether Trump and his associates are guilty of fraudulent activities over the course of decades. These cases have been going on for years. However, of all four legal challenges they are the least likely to end in an indictment. Both New York cases have faced delays and setbacks, and at the moment it is unclear whether they have an airtight case to make.
Two, Washington D.C. Several government bodies, most notably a congressional committee and the Department of Justice (DOJ), have been conducting separate investigations into the former president’s role in the January 6th insurrection. The congressional committee has arguably gotten the most attention out of Trump’s four major legal battles, as they organized a series of high-profile hearings to present evidence and question witnesses. However, the committee has limited ability to actually ‘go after’ the former president, because they lack the power to prosecute and are likely going to be shut down after Republicans take back the House of Representatives. The DOJ investigation, meanwhile, has been extraordinarily quiet and secretive. It has the power to file an indictment, but no one is really sure what they are doing or what they may yet do.
Three, Mar a Lago. This came to widespread public attention with the FBI raid on Trump’s Mar a Lago residence in mid-August. The raid was the most dramatic episode of a months-long DOJ investigation into Trump’s handling of classified materials in the aftermath of his presidency. Essentially, Trump’s removal of classified documents from the White House, his possible negligence surrounding their storage and use, and his subsequent inability to properly return them is all being considered as a violation of the Espionage Act, which prohibits obtaining or copying information relating to national defense with the intent or effect of injuring the United States. As an active criminal investigation with a long paper trail, some consider this the likeliest source of any indictment coming directly from the federal government (specifically the DOJ).
Four and finally, Fulton County. This is another local case, conducted entirely out of the District Attorney’s office in Fulton County Georgia. The DA, Fani Willis, is investigating whether or not Trump violated Georgia state law in attempting to commit or solicit fraud regarding the tabulation and certification of ballots in Georgia’s 2020 elections. Specifically, the case hinges on Trump’s attempt to pressure Georgia’s Secretary of State, Brad Raffensperger, to “find 11,780 votes,” which took place during an hour-long phone call on January 2nd, 2021. The main defense presented by Trump’s lawyers so far is that he cannot be prosecuted for anything he did while acting as president.
Brookings penned an excellent report on the Fulton County case that, among other things, neatly deconstructs this defense:
As a general proposition, it is true that former presidents enjoy a measure of immunity for actions undertaken while in office—to protect the president’s exercise of discretion in doing his job.44 But substantial authority establishes that this immunity from liability extends, at the very most, to actions taken by the president that fall somewhere within the scope of his lawful duties as a federal official. And that standard is not satisfied here. It is not a close call. Neither the Constitution nor federal law confer any authority on the president over the process of counting or tabulating ballots or certifying the results of an election.
So that's where things currently stand. Clearly, there are many potential legal pitfalls ahead of Trump, but it’s unclear whether the evidence in any one of these cases will be strong enough to produce an indictment, let alone if an indictment will lead to a trial.
What’s more, this situation reeks of the Mueller investigation, where the giddy hopes of Trump’s liberal critics were dashed against the rocks of uncaring legal scruples. Let’s not get our hopes up again, right?
But while the public has generally turned away from Trump’s legal battles, other commentators have been paying attention, and several have recently noted the seeming momentum behind a formal indictment. Indeed, some reports suggest that an indictment may be presented within the next two months, specifically by the Attorney General Merrick Garland.
Trump also seems set to announce his 2024 candidacy sometime after the Midterms. And if Trump announces, and then Garland issues an indictment, the optics will look bad to say the least – ‘oh, the government is only going after him because he’s a threat to Biden in 2024,’ etc. Indeed, a mistimed indictment will serve as confirmation for the delusional. I suspect Trump is aware of this, and probably wants to shoot first because of it.
In any case, I don’t want to dive into the relative likelihood of an indictment – for that angle, I’d highly suggest a recent piece in the Atlantic by Franklin Foer and the aforementioned Brookings report (which lays out the precise legalities in play in Georgia).
Instead, I want to briefly address a more basic question: if sufficient evidence is there, either in the Georgia case or the federal cases, should Trump still be indicted?
To say that such an indictment would be unprecedented is an understatement. Moreover, if an indictment is issued, what would a trial of Trump even look like? In his piece, Foer predicts:
Trump would of course attempt to make the proceedings a carnival of grievance, a venue for broadcasting conspiracy theories about his enemies. The trial could thus supply a climactic flash point for an era of political violence. Like the Capitol on January 6, the courthouse could become a magnet for paramilitaries. With protesters and counter protesters descending on the same locale, the occasion would tempt street warfare.
These are legitimate concerns; an indictment of a former president is not to be done lightly. Some would argue it is better to let him slip away into obscurity. Some would argue it is better to stay on this side of the Rubicon, lest all future presidents face the wrath of an unfriendly justice system. Surely, if we are cautious and careful, we can avoid the political maelstrom an indictment would bring.
Whatever decision is reached, be it by DA Willis or AG Garland, the law should not be sidelined simply out of a hope to avoid criticism and tumult. The stakes involved are too high for that.
Put simply, the failure to indict Trump would represent the apotheosis of American decline.
We either are a nation of laws or of men – we cannot be both. If our leader can make such brazen attacks against the democratic process and the sacred trust of elected officials, and then not only avoid justice but actually continue to hold a central place in the constitutional order, then the legal system is guilty of a fatal corruption.
Trump must have his day in court, so that he can once and for all submit to due process, rather than snipe at American institutions through Tweets and rallies. Facts and evidence alone must decide what happens to him now, or whether he should be allowed to run for public office.
In a time of conspiracy of fake news, facts and evidence getting to decide anything would be a welcome relief.
Reflecting on the consequences of a potential indictment over the last several weeks, I keep coming back to the legalistic idealism that first breathed life into the country we know today. After all, the country’s founding documents and institutions were crafted by men who can only be described as massive legal nerds.
One of these men, John Adams, defended the soldiers involved in the Boston Massacre of 1770. At the end of the trial, as he wrapped up his final defense plea, Adams gave a dispassionate defense of the very concept of law. In doing so, he made a statement fitting to the current moment:
The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men...On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.
We have never been a country of ideal justice. We have fallen from the steady course many times before. Even in 1770, perhaps the high rhetorical bar set by Adams was hopeful to the point of naïve anachronism.
But in 2022, the American justice system finds itself in peculiar circumstances, presented with the chance to get something right. This will be decided far from the ballot box. But in some sense we are all invested, we are all accountable, for the outcome.
Let the midterms come and go. On the question of indictment, I only hope we will not bend.