If the Trump Indictment in NYC is Political, It's Bad Politics

 by Michael C. Dorf

If I had to rank the criminal charges Donald Trump could realistically face and/or already faces from most serious to least serious in terms of the harm to the public, they would be:

(1) Federal charges relating to inciting insurrection;

(2) Georgia state charges relating to attempting to intimidate/interfere with election officials;

(3) Federal charges for deliberately concealing mishandled classified documents;

(4) New York State charges for falsifying business records in order to conceal evidence of other crimes.

Note that I have listed only those crimes for which there appear to be active criminal investigations. I have not included direct federal charges for election law violations with respect to the payments to Stormy Daniels that apparently form the predicate for New York charges that were filed against Trump on Thursday of last week. (We don't know exactly what the charges are yet.)

Nor have I included charges for obstruction of justice with respect to the Mueller investigation or for obstruction of Congress with respect to the investigation that led to Trump's first impeachment. Where exactly those would go on my list is not entirely clear, but they're all more serious than the charges that likely comprise the indictment that was issued last week. Indeed, even if we stick to falsifying business records, the sorts of shenanigans that the Trump organization performed and for which the organization was found guilty seem more serious than the crime for which Trump was indicted.

Thus, of the kinds of charges that could be credibly filed against Trump, over half a dozen concern forms of wrongdoing that are more serious--both in terms of their damage to the Republic and as evidence of Trump's wickedness--than the charges that were actually filed. Perhaps some of those other kinds of charges will soon be filed and Trump will be tried and convicted on them, but until that happens, we find ourselves in a very odd place.

To be clear, that is not to say that the charges that DA Bragg has filed against Trump are unserious. Falsifying business records to conceal a crime is a big deal and, it seems, the sort of crime that the Manhattan DA's office traditionally prosecutes. Moreover, as I noted a couple of weeks ago, Trump's most plausible-seeming line of defense--that he falsified business records to prevent his wife from learning of his infidelity rather than to cover up a campaign finance violation and is thus guilty of only a misdemeanor--fails to take account of how the key NY statute is worded. So Trump fairly faces genuine legal peril. It's just that he should fairly face even more legal peril for the more serious offenses with which he could be charged.

And that plays into the hands of Trump, his supporters, and the fellow traveling GOP politicians and their allied media eager to curry favor with Trump's base. I don't watch right-wing talking heads on television but I understand that they have been FREAKING OUT over the last several days, denouncing the indictment as politically motivated. I have no doubt they would also be freaking out if Trump were indicted after being seen by hundreds of eyewitnesses and caught on video shooting someone on Fifth Avenue. But in that case, I suspect that the "it's political" message would resonate with fewer independents and anti-Trump or even meh-on-Trump Republicans.

Put differently, even though Trump is not being charged with merely lying about an affair, for the >99% of Americans who will not be familiar with either the wording or traditional use of NY felony falsifying public records law, the case will be relatively easy to characterize as the "weaponization" of the criminal justice system for political purposes. Just about everybody who commits adultery lies about it. The public knew Trump was a playboy because he bragged about it. So the right-wing media narrative will have some resonance.

And that, my friends, is part of how we know that this case is almost certainly not political in the sense that it's not a calculated effort by Trump's political enemies to bring him down. If anything, it seems likely to consolidate support for Trump, who is always playing the victim. And if he can credibly play the victim (to those who are not well informed about the law or who are well informed but see political advantage in playing along) with respect to the NY indictment, then he will be better positioned to cry politics again should an indictment in Georgia or from Special Counsel Jack Smith follow it.

There is, however, one way in which the indictment could make some sense politically. A Machiavellian Democrat might reason thus: Donald Trump has cost Republicans in each of the last three federal election years; he is the weakest possible Republican nominee for President in 2024; therefore, it is advantageous to Democrats to provide Trump with advantages over his Republican rivals. I would dismiss this reasoning as absurd were it not for the fact that Democrats actually used a version of it in the 2022 midterms, supporting Trump-backed extremists in Republican primaries in the expectation that such candidates would be easier to beat in the general election. That expectation proved true, but the tactic was nonetheless very risky and also contemptible--a bit like war-mongers deliberately joining a Quaker church to undercut the latter's commitment to pacifism.

I'll likely have more to say in a future column about whether Trump's continuing hold on the Republican Party is good or bad for Democrats. (Spoiler alert: It's bad for everybody, including both major parties.) For now I simply want to say that it's inconceivable to me that a responsible prosecutor--and I have every reason to think that Bragg and the attorneys who work for him are responsible--would calculate the third- or fourth-order political effects of prosecuting Trump, which are, in any event, unknowable.