Discover more from The Bulwark
What If the Trump Indictment Changes . . . Nothing?
How to stop worrying about Alvin Bragg and learn to love the legal system.
1. Weak or Strong?
Most of the conversation around the indictment is an attempt to determine if it is weak or strong.
I can see it both ways.
But it’s important to start from the baseline understanding that the “weakness” or “strength” of the indictment has absolutely nothing to do with the facts of the case or the underlying criminality of Trump and his lawyer, Michael Cohen.
It is not in dispute that:
Trump directed the payment of money to prevent Stormy Daniels from telling her story.
The underlying purpose of this payment was to influence an election.
As such, that money was an in-kind campaign contribution.
The amount of said money far exceeded legal limits.
Trump then falsified business records so as to conceal the purpose of this expenditure.
This chain of facts—along with a black-letter reading of the law—is why Michael Cohen went to jail.
So in that sense, the strength of the case is air-tight.
When people express concern about the indictment’s “weakness” they are speaking about the underlying technicality of whether or not this criminality is a misdemeanor—in which case it is past the statute of limitations—or if a New York court could reasonably construe it to fit the state’s felony definition of the crime.
In other words we are talking, entirely, about technical legal maneuverings.
The best case against the indictment I’ve read is from Vox’s Ian Millhiser:
The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. . . .
[E]ven if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution.
The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” . . .
Trump, in other words, is not being charged for the payments to Daniels themselves (most of the time, paying someone to keep quiet about something is not a crime). He is not being charged with campaign finance violations, either. (After Trump left office in 2021, federal prosecutors reportedly considered charging Trump with a campaign finance violation, but ultimately decided against it.)
Instead, Trump is accused of violating a state law that makes it a crime to falsify business records with the intent to defraud — and doing so specifically to conceal another crime, the federal legal violations at the heart of Cohen’s conviction. . . .
Ordinarily, falsifying business records in this way is only a misdemeanor under New York law, meaning that it is considered to be a minor crime that is only punishable by up to a year in prison.
But someone accused of falsifying business records may be charged with a felony if their “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” . . .
But it is far from clear that a New York state prosecutor may charge Trump with a felony because he tried to cover up a federal, as opposed to a state, crime.
On the other hand, the best case I’ve seen for the indictment came from Amanda Carpenter last night:
The short version: This is what accountability looks like.
Trump (allegedly!) broke a bunch of laws. A number of prosecutors are investigating those (alleged!) crimes. These prosecutors found enough facts and enough law to secure an indictment. Now the process will play out.
Is it a slam-dunk? No. Is it possible that during the motions phase a New York court will decide that the district attorney has not met his burden to make the felony charge? Yes. Even if a trial judge agrees that the state is within bounds, is it possible that an appeals court will reverse it? Of course.
But that’s the justice system. Always.
The alternative is not even attempting to seek accountability for what is—again, very clearly—criminal activity, the underlying facts of which are not in dispute.
Think of it this way: In 2020, Trump’s legal team and his Republican enablers filed dozens of
bogus highly dubious lawsuits related to the election. We were told by conservatives that no matter how outlandish or amateurish these cases were, the legal process must be respected and every case must be allowed to have its day in court.
And so they were.
What is good for the goose is good for the gander: This case deserves its day in court, too, and it makes no sense for Trump’s lawsuits, which sought to pervert the law, to be respected and allowed to run their course, but then argue that this case, in which some legal accountability for criminal behavior is sought, ought to have been short-circuited.
If the district attorney’s case is technically deficient, then it will be dismissed. That’s for the courts to decide.
All of which brings us to the fundamental asymmetry of American politics at this moment.
Today you have a large number of Democrats, liberals, and anti-Trump Republican types taking a magnifying glass to technical legal terms, thinking about “the rule of lenity,” and generally trying to find the narrowest possible reading of the law as it can be construed to the defendant’s benefit.
Last night, you had that same defendant spewing lies and issuing threats like a mobster with a Mussolini complex. (Will Saletan has the full run-down here.)
This is always the problem when good-faith actors confront bad-faith actors. When liberalism confronts illiberalism.
And the solution is not for liberals to take the gloves off and employ their own illiberal means. The good guys have to remain committed to the rule of law. That’s what makes them the good guys.
But at the same time, I’m not sure how society is supposed to function if the forces of authoritarianism are free to threaten, cajole, dissemble, and flout the law, while the supporters of liberal democracy tie themselves in knots seeking only a perfect criminal case through which to pursue accountability—and even then, many of them would prefer to avoid the judicial system altogether because they hope for an electoral remedy.
The Bulwark is a reader-supported publication. To receive new edition of this Triad newsletter and support our work, consider becoming a free or paid subscriber.
3. The Good News
And yet, for all of the drama of the last few weeks, I wonder if, in the end, none of this matters.
We had our arraignment. The case will now recede into the arcana of motions and counter-motions centered around technical aspects.
If there is a dismissal, it will be done via document. Trump will not see the inside of a courtroom again unless there is a trial. And if there is a trial, it is not likely to be until after the Republican primaries have concluded.
Two weeks from now we’ll be on to the next thing. Maybe Trump will be pledging to kick Finland out of NATO. Or claiming that Jack Smith is trans. Maybe he’ll call Ron DeSantis “Disney’s bitch” and we’ll all have a good laugh.
Point is: There will be something else. There is always something else.
By June, 90 percent Americans won’t remember who Alvin Bragg is.
Did the fact of this indictment change the dynamics of the Republican primary? I think so. But also, if there are other indictments then it won’t matter that this one came first. Because if Bragg doesn’t go, but then Jack Smith indicts Trump on the classified documents case, we get to the same place.
We were going to wind up where we are now, one way or another. Whichever case came first.
Also: I am not convinced that, in the court of public opinion, voters are able to tell the difference between a “weak” indictment and a “strong” indictment.
In none of these potential cases are we talking about videotape of Trump shooting someone on Fifth Avenue. All of them are technical matters centering around readings of law and questions of intent.
In every case, Trump insists on his total and perfect innocence.
In every case, the entire Republican establishment has rallied to him.
In every case, Conservatism Inc. will construct bad-faith arguments about how this indictment is weak, and overreaching, and unwise, and damaging to the body politic and should not have been pursued.
Do you think the median Republican voter is capable of making measured judgments about any of these issues? I remind you that the vast majority of Republican voters did not even believe that Trump should have been impeached after January 6.
On the character of the Republican voter, I’d like to direct your attention to a story David French told Sarah on The Focus Group a few weeks ago.
French was volunteering for Samaritan’s Purse after tornados hit Mayfield, Kentucky, earlier this year. Here’s French:
I’m talking to one of the most lovely people, who’s up to her eyeballs in debris, trying to dig people’s possessions out from this catastrophe. And we’re having a great conversation. And then she turns to me and says, “You know, they sent this tornado to punish the red states.”
Do you think this lovely woman is capable of making a distinction between “a flawed, over-reaching legal theory” in one indictment and a “rock-solid” case in another indictment?
I do not.
So here’s my optimistic view: Whether this case is strong or weak, wise or unwise, it doesn’t matter. People won’t care. And to the extent that they do care, their opinions will be untethered to any considered judgment of the merits.
Does the mere fact of criminal charges having been brought help Trump politically? Probably. But again: We were likely to get criminal charges eventually. So he was going to get that bump from Republican voters regardless. I am skeptical that either conservative media reaction or Republican voter reaction would have been any different if the eventual first indictment was “stronger.”
And finally: Even if you believe that this indictment is weak and that it does matter politically, what was the remedy?
This indictment was sought by a district attorney who has, by law, total authority over the decision. He is not accountable to the mayor of New York City. Or the governor of New York state. Or the president of the United States.
Joe Biden did not have the authority to call Alvin Bragg and demand that he drop the case. If Biden had taken such action, it would have been inappropriate, bordering on the criminal.
The fact that Biden did not make such a call, even though it might have been in his political interest, is to his credit.
Which leaves us here: The thing that matters most—the only thing that matters—is that the legal system functions properly.
Donald Trump must be given due process and fair treatment by the state.
He should have the best possible representation and these lawyers should mount a vigorous defense.
If the court believes that the government’s charge is out of bounds, then it should dismiss the case. If the court allows the case to proceed, then its decision should be reviewed.
If the case goes to trial, a jury should be empaneled that seeks to give a fair and impartial hearing.
The government should have to overcome a number of burdens and much review in order to obtain any conviction. If it can not obtain a conviction, then it must abide by the court’s result.
That’s it. That’s all we can ask for.
As a wise man said, “Until such time as the world ends, we will act as though it intends to spin on.”
Which means applying the law and letting the legal process work. Even if it is politically undesirable or inconvenient.