How to Think About…the Trump Indictments

Our times seem to demand partisanship. While there is very little to be for (Biden/Trump anyone?), there is a great deal to actively hate. It is a situation that makes partisanship easy. Nor is it easy to resist the demands of partisans, loaded as they are with the undeniable proof of the sins of their opponents.

If it is difficult, psychologically, to resist partisanship, it carries a practical penalty as well. Holding a commitment to the truth not a side, is to take a real risk. In a world where nearly everyone is a partisan, to refuse sides is to have very few friends and a great many enemies.

But partisanship is the enemy of both thought and truth.

Refusing partisanship is not the same as refusing to have an opinion – it is simply an insistence that your opinion is not determined by your side. Nor is this an exercise in whataboutism – which always excuses one’s own intellectual and ethical sloppiness within the context of someone else’s failings. That kind of excuse is worthless. It’s true that the ideologues driving American politics today are awful. Both the left and right are devoid of ideas, philosophy, empathy, humanity, and values. Both seem to be working hard to destroy what is worthwhile in our society and nourish what is diseased.

Yet no one in American politics is more problematic than Donald Trump. Not only is Trump uniquely awful, he makes it difficult for anyone not driven by blind hatred of the left to become anything other than a partisan against the right. This has been bad for the country. It has been bad for journalism. It has been bad for the many people who used to have interesting opinions and now have stupid beliefs. If Trumpism has been corrupting – both intellectually and ethically – on his supporters, it has been almost equally so on his opponents.

Nothing about this has gotten better and, somehow, it keeps getting worse. We face an election cycle where Trump is a frontrunner both for the nomination and a jail cell. Indicted four times on more than 90 charges, he will, presumably, be hopping back and forth from the campaign trail to the courthouse. Not unreasonably, this has garnered an immense amount of press coverage (though less than if the person involved were any other candidate about whom we were not all so comfortably numb).

On the ideological right, it is simply accepted that the indictments are another tired example of the left’s ongoing attempts to derail and destroy Trump. Those attempts date back to before the 2016 election, and they have been so numerous and ineffectual that it is hard to remember how many there have been or of what most of them consisted.

On the ideological left, it is a given that the indictments are serious, necessary, and that Trump is guilty. The only questions on the left are whether Trump will manage to skate and whether the indictments or convictions will prove politically damaging.

It is beyond the purview of TW2BR to evaluate this last concern (or, for that matter, the likely outcome of jury trials). Nate Silver might have reasonable opinions about electoral impact, but if the past decade has taught me anything, it’s that it’s useless for someone thoroughly non-ideological to try and guess what will impact voters (even swing voters) and what will not.

On the other hand, criminal indictments of a past-president and current candidate are truly unprecedented, and it is hard to withstand the whirlwind of opinionology that accompanies them. What is there to say about the indictments? Do they matter? Should you care? And is there a position outside the ideological camps worth having?

Are the Indictments Serious?

With four very different indictments, there is no single answer to this question. It’s hard to take the first (NY) indictment seriously. It is a minor matter. The legal theory being advanced looks patched together. And it is almost unimaginable that anyone would change their opinion about Donald Trump based on either the indictment or the outcome of a trial.

The two indictments related to the election are unquestionably serious.

The secret documents case is less clear. While blowhards love to talk about how important classified documents are, it’s hard to imagine that anything in Trump’s boxes really mattered. It is also clear that Trump (probably like most ex-Presidents) had few qualms about trotting out whatever nugget of intelligence might serve to set off an anecdote or garnish a conversation. He didn’t need old documents in boxes for that.

Yes, providing intelligence to an enemy is a serious thing. But that’s not what’s at stake here. Safeguarding our nation’s secrets? That’s important too. But we generally trust President’s (and even ex-Presidents) to have reasonable discretion about what’s really secret and what’s merely classified. What Trump is on trial for here is withholding documents and lying about having them. It’s a very Trumpian thing to do. Pointless, stupid and gloriously argumentative. But it’s hard to take too seriously.

I cannot believe that anyone could, with a straight face, tell me that they think worse of Donald Trump because he kept boxes of government documents and didn’t return them when asked. In the world of Donald Trump, this hardly even registers. It’s like thinking worse of Capone because he lied on his taxes.

Are the indictments politically motivated?

Again, there are again distinctions to be made. The NY indictment might as well have been crafted by the Democratic Party. The Georgia indictment reeks of political motivation as well – particularly in its overbroad scope and use of RICO. It’s hard to imagine a similar indictment without a strong political animus.

Is political motivation enough to make one discount the indictments? It does matter. Political use of the judicial system is always bad. It can be devastating to the broader political system, and when the law becomes the weapon of choice for political parties the machinery of government becomes almost impossible to run. Nor is this a genie that can be stuffed back into its bottle. When you launch a gas attack, firebomb a city, or sink commercial ships without warning, the one thing you can be sure of is that the other side will do the same thing to you if they can.

On the other hand, it’s much less clear that either of the Federal indictments – particularly the secret documents indictment – were driven by political motives. Trump had every opportunity to turn the documents over and had he done so at any point prior to a search, it seems unlikely that charges would have been forthcoming. It was sheer pig-headedness on his part that forced the government to get a warrant and seize the docs. And once that was done, it would have been hard not to indict.

So, are the indictments a good thing or a bad thing?

The simple take on the left is that the application of justice must be as likely for ex-Presidents as anyone else. If someone committed a crime, it should be prosecuted and the willingness of prosecutors to charge Trump is both good in-and-of-itself and good for democracy more broadly. Neither point is persuasive. The law is never cut-and-dried, and the same people who make this argument about Trump are often the first to argue for prosecutorial discretion in a host of other cases. We expect – and should expect – reasonable application of the law not the rote following of rules. We expect this at every level of the judicial system, from traffic cops to beat officers to prosecutors to judges. No aspect of the law is ever a simple matter of rule following.

Because there is no such thing as a good political indictment, even when an indictment is warranted and is NOT politically motivated, reasonable people in the legal system should be reluctant to wield the tools of their trade in contexts where there may be an appearance of political motivation. And the more important, prominent and controversial the political figure in their crosshairs, the more reluctant they should be.

This is not like being a foreign Ambassador. Presidents and prominent politicians do not and should not have a get out of jail free card they can wave whenever they land on the wrong square. Yet the bar should be high for prosecutions involving political figures. The crimes should be serious and the culpability of those charged should be clear.

This is particularly true when those doing the charging are in the enemy camp. No human that’s ever lived was unbiased, and what we owe our professional and democratic obligations is a recognition of the biases we carry and an appropriate adjustment to the thresholds of prosecution.

Was that discretion applied here? In at least two cases, I think the answer is no. But in the other two, I think a reasonable case could be made that it was. Yet even if you think the indictments were justified and necessary, that doesn’t commit you to thinking they are good for our democracy or will prove useful. Sometimes the requirements of a job with specific responsibilities obligate us to do things that will make the broader system worse. Within the bounds of specific systems (like the legal system), questions of utility do not always and should not always prevail. Within the purview of their professional responsibilities, the federal prosecutors probably did the right thing even though the wider consequences are likely to be bad. There’s a good chance (though this, too, is very open to debate) that the indictments will not hinder Trump either in the Republican Primary – where they have probably helped – or even in the general election. And without some more fundamental return to political sanity, we can look forward to the increasing use of prosecutorial weapons for political purposes. A weaponization that will not only be justified by the precedents being set right now but will be driven by them. That, of course, will reinforce the polarization and hostility inside the ideological camps.

Containing this kind of negative feedback loop isn’t impossible, but the more we increase the size of the negative reinforcements in the system, the harder it becomes to break the cycle. Indicting Trump has dramatically increased those negative feedback loops and further raised the threat of legal harassment across the political spectrum.

The only real and important way to defeat Donald Trump is in elections. 2020 mattered in a way that none of the countless legal efforts to get him did or will. If Trump wins in 2024, it’s hard to see what good any of these indictments (or convictions) will do. If he loses, it’s hard to see how they matter.

Should the indictments make you think worse of Trump?

Pundits in the media like to express their shock and disbelief that all these indictments don’t seem to make people think any worse of Trump or any less likely to vote for him. But really, it’s hard to understand why they should. One of the indictments isn’t germane to politics. And while he’s undoubtably guilty of withholding classified documents, it beggars the imagination to think that anyone who has been paying attention to Donald Trump would think worse of him because of it. That leaves the two truly serious charges – both related to the aftermath of his failed re-election.

The thing is, everyone knows exactly what Trump did after the election. If people didn’t already hold it against him, it’s hard to understand why they suddenly should just because a prosecutor files charges. There isn’t anything particularly surprising, new or interesting in the indictments; so, why should they change anyone’s mind?

That’s also why, in all four cases, it hardly matters what the final verdict is. Everyone knows, I think, that Trump did essentially all of these things – though what counts as legal and proof are nearly always ambiguous to those of us not in the profession. But what he did really isn’t an issue. It’s the interpretation you put around the actions that matters. If he is acquitted, would journalists suddenly think better of him? I don’t think so.

Obviously, I share the traditional media’s nearly complete inability to understand how anyone could support Donald Trump, admire Donald Trump, or vote for Donald Trump. I have only the glimmer of understanding that comes from feeling an equal contempt for the mainstream media pundits and political elites.

Which has always made me wonder how much of Trump’s support is love for him and how much hate for others? When you hate something enough, any ally seems like a savior and Donald Trump was uniquely willing to question the media and political elites. I can understand why people admire that, even if it seems obvious that those same elites are desperately hoping that Donald Trump is the Republican nominee.

But even if I can’t get into the mind of a MAGA Republican, at least I can understand why these indictments don’t bother them. If you didn’t think Trump’s behavior after the election was a problem, you truly have no reason to put stock in these indictments.

The Bottom Line

Like so much else surrounding Donald Trump, he’s made everything worse. Not least in the lengths his enemies will go to in trying to get rid of him. The country would likely be better off if none of these indictments had landed even though Trump may well be (legally) guilty in every case and some of the charges are serious.

But his behavior after the election did something I thought was almost impossible; something that none of these indictments has done at all. As awful as Donald Trump has been for our country, he could have slumped off into the sunset in 2020 without absolutely proving himself to be – along with his other manifest flaws – a betrayer of his oath and his country. That he failed even that was one of the very few things Donald Trump could have done that made me think worse of him.

[How To Think About articles break down controversial or difficult issues that are clouded by ideological bias or popular opinion and try to sort out how a person might approach them.]

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