Trump’s Indictments

In​ the 1920 US presidential election, Eugene Debs, or Convict 9653, won 913,693 votes while serving a ten-year sentence in a federal prison in Atlanta. ‘Under the influence of this unreasoning mob psychology,’ the editors of the New York Times complained, an ‘acknowledged criminal is nightly applauded as loudly as many of the candidates for the presidency who have won their honourable eminence by great and unflagging service.’ The following Christmas, Debs, the perennial Socialist Party candidate, was released with a commuted sentence on the orders of President Warren Harding.

Debs won 3.4 per cent of the vote in that election, but Donald Trump is currently polling ahead of Joe Biden in five of the six states he needs if he is to win 270 electoral college votes on 5 November. The Republican primary electorate wants Trump, even though the former South Carolina governor, Nikki Haley, has at times polled substantially better against Biden in swing states and nationally. Trump’s campaign has made much of his own legal problems. Debs was prosecuted under a federal law called the Sedition Act, passed at Woodrow Wilson’s urging in 1918 and aimed at the anti-war campaigners of the Socialist Party. Trump sees himself as the victim of a malign campaign orchestrated by the ‘Biden Crime Family and their weaponised Justice Department’ that has led to him facing 91 felony criminal charges across four indictments in four different courts: state courts in New York and Georgia; federal courts in Florida and New York. In claiming that these charges are intended to ‘interfere with the presidential election’, Trump is trying to portray himself as an interloper in, and an enemy of, the political establishment rather than a former president with a vice-like grip on one of the US’s two major political parties.

There is no precedent for a Republican or Democratic candidate running for the presidency while facing criminal charges. Whatever Trump’s conspiracy theories, these prosecutions are not just the work of different prosecutors, but of distinct governments. The United States is an uneasy combination of a national sovereign state and fifty subnational but somehow also sovereign states. The national government and the states have their own criminal codes and criminal courts. They select prosecutors in very different ways. The two district attorneys who have brought charges against Trump, Alvin Bragg in Manhattan and Fani Willis in Fulton County in Georgia, are elected. As such, they are sensitive to their (overwhelmingly Democratic) constituents’ preferences, but they are not tools of the Biden administration. In contrast, the federal prosecutor Jack Smith is a ‘special counsel’, appointed in November 2022 by the US attorney general, Merrick Garland. Under Justice Department regulations dating from 1999, special counsels are appointed when the attorney general has a conflict of interest. Smith can be fired only for ‘good cause’, and then only by the attorney general. This is supposed to give him a measure of independence from political control. Unlike Trump, who tried to fire the former special counsel Robert Mueller, Biden has made no attempt to breach this norm. Federal convictions differ from state convictions in one further, striking way: as Debs learned, federal convicts can be pardoned by the president, while state prisoners can be pardoned only though a state-level process in which the president plays no role. In Georgia, for example, concerns about the gubernatorial abuse of pardon powers in the 1940s led to the creation of an independent board to handle the process.

If there was a conspiracy to keep Trump from running, criminal charges would be a cumbersome method to choose. No provision in the US constitution prevented Debs from running in 1920, and nothing stops Trump from campaigning or taking office even if convicted. Under the constitution a candidate for the White House needs only to be 35 years of age, a ‘natural born’ citizen and a resident of the country for fourteen years. Those who drafted the constitution were too preoccupied with managing disagreements over slavery and representation to concern themselves with far-fetched hypotheticals about felons seeking office. After the Civil War, a provision was included in the Fourteenth Amendment of 1868 barring from office anyone who took an official oath and then ‘engaged in insurrection or rebellion’. This laconic provision says nothing about the mechanism of disqualification (a statute? A judicial process?). Its reach is also unclear. Secession by a state relying on the force of arms is plainly ‘insurrection’. What about making false claims of election fraud to goad a mob? The Colorado Supreme Court and Maine’s secretary of state (who has oversight of the conduct of elections) have barred Trump from the Republican primary ballot under the Fourteenth Amendment. But they won’t have the last word: the Supreme Court has said it will take up the issue. Armed with a supermajority of six Republican appointees, including three nominated by Trump, the court seems unlikely to affirm the Colorado ruling, despite powerful legal arguments in favour of his exclusion. It’s likely that the justices will say federal legislation is needed before disqualification can be considered.

The criminal indictments do have an indirect influence on Trump’s immediate political prospects. A conviction might not disqualify him from running, but recent polling suggests that it could still have a decisive effect on his electoral prospects. This might appear surprising. After all, Trump’s misdeeds have been amply documented through two impeachment proceedings, extensive congressional investigations, Mueller’s final report and endless news coverage. Perhaps the liberal principle of ‘innocent until proven guilty’ is at work. If so, it is having distinctly illiberal effects. For now, the criminal indictments enable Trump to paint himself as a victimised outsider. And neither indictments nor convictions will matter if Trump wins in November. He will find a way to negate any conviction, perhaps by pardoning himself.

The least significant indictment was the first, filed in state court in April 2023 by Alvin Bragg, the Manhattan DA. It includes 34 charges of falsifying business records concerning funds channelled by Trump, via his former consigliere Michael Cohen, to the porn actress Stormy Daniels to buy her silence about sexual encounters with him. But evidence of the Trump Organisation’s dodgy finances has been accumulating for years. Indeed, in a different suit in civil court, filed by the New York State attorney general, Laetitia James, evidence of corporate misconduct has been aired without refutation. This hasn’t had a discernible effect on public opinion and it’s hard to see why the criminal case will be any different.

That’s not to say the charges lack merit. Bragg’s thinly sketched indictment has attracted criticism on technical grounds, but these are based on a misunderstanding of New York law. In New York, the crime of falsifying records applies only if a defendant intends to commit or conceal another crime. Bragg’s critics say that he will claim a breach of the federal law of campaign finance, and that this would violate the constitutionally mandated precepts of American federalism. It’s true that Cohen has already pleaded guilty on charges of violating federal campaign finance law, but Bragg could also use New York tax violations as the crime being concealed. He doesn’t have to involve federal law.

Fani Willis’s indictment in the Georgia state court in Atlanta focuses on efforts by Trump and eighteen others to prevent the orderly counting of ballots in November 2020 and uses a state Rico (Racketeer Influenced and Corrupt Organisations) statute. Originally designed to tackle organised crime, Rico laws allow prosecutors to allege diffuse conspiracies, and then to charge individual defendants with the crimes of others in the alleged network. Willis has a fondness for dramatic use of Georgia’s Rico law. In one case, she charged the rapper Young Thug and his record label YSL, or Young Stoner Life, of parallel operation as a street gang called Young Slime Life that was responsible for a decade of carjacking, drug offences, robberies and murders in Atlanta. In August 2014, Willis used Rico to charge 35 Atlanta teachers with a conspiracy to enable cheating on standardised tests; 21 pleaded guilty and 11 of the 12 who went to trial were convicted.

Rico cases tend to sprawl. They often include large numbers of defendants and deal with disparate events. This leads to complex pre-trial processes in which defendants seek discovery of prosecutors’ files, argue over whether to be tried together or separately, and enter into mutually damaging plea deals. The Atlanta teachers’ case took six years. Young Thug spent 567 days in jail before his trial began last November. Trump doesn’t face the prospect of bail denial or remand to the Fulton County jail. Unlike Young Thug, he benefits from the long build-up before a Rico trial. If, as seems likely, Trump’s trial date is after November, and he goes on to win the election, his Justice Department would argue for, and get, a stay of charges. Although a president cannot issue a pardon in a state case, he can push a trial far enough down the road that it ceases to be of practical significance. As a result, the most important developments in the Georgia case are the plea deals reached by the lawyers Sidney Powell, Kenneth Chesebro and Jenna Ellis, who have agreed to co-operate with prosecutors against the other defendants. They might testify about Trump’s intent in alleging election fraud in November 2020 – also a critical question in the federal litigation.

The weaknesses of the New York and Georgia cases raise the stakes of the two federal cases filed by Jack Smith. His first case, lodged in a Florida federal court last June, turns on the alleged mishandling of classified documents at Trump’s Mar-a-Lago resort in Palm Beach, in breach of the 1917 Espionage Act. The indictment says that Trump personally oversaw the collation of secret, defence-related information which he had taken to Florida after he left the White House. Boxes of documents were moved between a ballroom, a bathroom and a shower stall, before ending up in a storage facility that could be reached ‘from multiple outside entrances, including one accessible from the Mar-a-Lago Club pool patio through a doorway that was often kept open’. At a July 2021 meeting with a writer and a publisher, the transcript of which is included in the indictment, Trump described the documents as ‘Secret. This is secret information … See as president I could have declassified it … now I can’t, you know, but this is still a secret.’

Although there is considerable evidence of criminal acts and intent, the Florida case is unlikely to move forward quickly. The judge assigned to it is a Trump appointee and superfan called Aileen Cannon. The average age of a federal judge on appointment is 50; Cannon was 39. Aided by the conservative Federalist Society, Trump nominated young, aggressively right-wing judges like her. In 2022, she attracted bipartisan criticism for acceding to Trump’s unorthodox request to obstruct federal investigations on the basis that former presidents have some sort of special privilege. Reversing her ruling, a panel of three Republican appointees noted that no ‘rule … allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.’ A year later, Cannon again made basic errors in a different criminal case: she forgot to swear in the jury and unlawfully closed the courtroom. She has already indicated that she is likely to delay a trial. For all his complaints about the political nature of federal justice, Trump appears to be a beneficiary of the increasingly partisan judicial appointment system.

Smith’s second indictment, lodged in the District of Columbia trial court, was assigned to an Obama appointee, Tanya Chutkan. A former criminal defence lawyer, Chutkan has presided over 38 cases stemming from the violence at the US Capitol on 6 January 2021. The prosecution recommended a custodial sentence in 34 of those cases; Chutkan agreed every time, and handed down custodial sentences in the other four cases as well. Not surprisingly, Trump’s lawyers tried, and failed, to force her recusal. The 45-page indictment focuses on Trump’s efforts to thwart the accurate certification of electoral college votes after the 2020 election. It mentions pressuring state and local officials to fabricate votes for Trump, or to dump Biden’s real ballots; cajoling federal officials to make false charges of electoral fraud; creating slates of ‘fake electors’ for the purposes of the electoral college; and inciting violence against legislators on 6 January.

The variety of allegations means that there are different ways Smith can substantiate the four criminal offences in the indictment: two counts to obstruct an official proceeding; one count of conspiracy to defraud the United States; and one count of conspiracy to deprive persons of legal rights. (The same facts can be used to prove more than one charge.) The first count presents the most serious legal difficulties. Enacted after the Enron scandal, this offence is chiefly concerned with the destruction or concealment of corporate documents. Whether it can be extended to other kinds of obstruction is unclear. Federal prosecutors have used it against more than three hundred of the 6 January rioters. All of the Democratic-appointed appellate judges dealing with these cases have read the statute broadly; their Republican-appointed colleagues have consistently read it narrowly. In December, the Supreme Court agreed to hear an appeal in one of those cases. But even if the court construes the obstruction narrowly, Smith’s other two charges are more straightforward. A century ago, the Supreme Court held that the offence of ‘conspiracy to defraud’ applied when ‘deceit, craft, or trickery’ were employed to interfere with or obstruct a government function. The offence of ‘conspiracy to deprive’ has also been used to criminalise efforts to meddle with electoral machinery. It was originally enacted in 1870 as part of the Enforcement Act, intended to enable federal prosecution of the Ku Klux Klan and other paramilitary groups that were trying to prevent Blacks from exercising their right to vote.

Trump’s lawyers have tried to obstruct Chutkan’s plan to hold the trial this spring by asserting presidential immunity from criminal prosecution. The legal arguments for this are weak, but by appealing against Chutkan’s dismissal of the claim, Trump’s lawyers are aiming to run down the clock. While it has moved quickly on Trump’s challenge to his Colorado disqualification, the Supreme Court has declined to hear Smith’s request for rapid resolution of the immunity question. As a result, the case may not be heard till after the election. Trump again benefits here from the law’s generous provision of liberal rights of process.

Although Trump complains about the political nature of the indictments, he has profited both from the politicisation of the federal bench and from the legalistic, rights-heavy character of American criminal adjudication. For the time being, he is benefiting from the indictments more than he is encumbered by them. The four current prosecutions are facilitating his road back to power. If he wins in November, they will become pretexts for new contortions of the American carceral and national security apparatus against the real and imagined enemies of a second Trump administration.