Trump’s indictment plus candidacy could endanger democracy and the rule of law
The
collision of former president Donald Trump’s criminal indictment with
the presidential campaign could further undermine confidence in
democratic principles and institutions of government, experts say
America’s
institutions have been attacked repeatedly over the past half-dozen
years, thanks principally to the conduct and actions of Donald Trump.
The next 18 months could further undermine confidence in democracy and
the rule of law as the former president seeks a return to the White House while defending himself against federal and state criminal charges.
Not since the Vietnam War in the 1960s or perhaps the mid-19th century before the Civil War has the country’s governing
structure faced such disunity and peril, given the unprecedented nature
of a federal criminal indictment of a former president compounded by
the fact that Trump has been charged by the Justice Department in the administration of the Democrat who
defeated him in 2020 and who is his likeliest general election opponent
in 2024, if Trump is nominated again by the Republican Party.
Scholars,
legal experts and political strategists agree that what lies ahead is
ugly and unpredictable. Many fear that the 2024 election will not
overcome the distrust of many Americans in their government and its
pillars, almost no matter the outcome. “A constitutional democracy
stands or falls with the effectiveness and trustworthiness of the
systems through which laws are created and enforced,” said William
Galston of the Brookings Institution. “If you have fundamental doubts
raised about those institutions, then constitutional democracy as a
whole is in trouble.”
The indictment in the case involving Trump’s retention of classified government documents coming in the midst of a presidential campaign raises legal questions about what might happen if he were to be convicted and elected. Could Trump pardon himself? Could he
serve as president after a conviction? Could he run for office from a
prison cell? Depending on events, those could become ripe for
adjudication.
On
top of those legal questions are big issues confronting the country.
With other investigations continuing — one into Trump’s role in the Jan.
6, 2021, attack on the U.S. Capitol and in the fake electors scheme,
and the other looking at his efforts to overturn the Georgia results of
the 2020 presidential election — more damage might be inflicted on these
democratic institutions by the battering likely to take place between
now and the inauguration in 2025.
“It
seems obvious and clear that it’s going to be worse and probably much
worse, but the form it might take and what that extreme reaction looks
like is very hard to predict,” said Jack Goldsmith, who served in the
Justice Department and at the Pentagon during the administration of
George W. Bush and now is a professor at Harvard Law School. “Convicted
or not, nominee or not, we can assume [Trump] is going to inflame this
to the maximum and his supporters will inflame this to the maximum.”
For
the past three years, Trump has sought to shred long-standing trust in
the country’s electoral process, claiming falsely that the 2020 election
was rigged and stolen. With no supporting evidence to buttress those
claims, public opinion surveys suggest that Trump nonetheless has
persuaded millions of Republican voters that President Biden was not
legitimately elected. Election denialism now infects a large portion of
the Republican Party.
With
the new indictment, Trump is again taking direct aim at the integrity
of law enforcement agencies, the judicial system and, ultimately, public
faith in the rule of law. He did this as president, and now, in the
aftermath of his 37 charges in the documents case — to which he pleaded
not guilty — he has escalated those attacks in an effort to discredit
the Justice Department and the FBI, claiming he is a victim of a
politicized “witch hunt.”
This
is not the first time the political and legal systems have been tested
together. But past comparisons are imperfect because the state of the
country has changed. As a result, institutions of government are more
fragile. That heightens the risks to the country this time.
The
2000 presidential election between George W. Bush and Al Gore ended in a
virtual tie, leading to a bitter recount in Florida that ultimately
resulted in the Supreme Court’s 5-to-4 decision that effectively awarded
the presidency to Bush, who received a narrow electoral college
majority, although Gore had narrowly won the national popular vote.
This
was a stress test by any measure. Gore was gracious in defeat, even
though he disagreed with the court’s decision, showing a willingness to
put the country and its institutions above his personal ambitions and
disappointments.
Benjamin
Ginsberg, a Republican lawyer, was working with the Bush team in
Florida at the time and pointed to the different conditions then. “Faith
in institutions was the only way you would approach that,” he said.
“That is clearly no longer the case. Both candidates [in 2000] were
going to accept the results no matter how fraught the situation. This is
really different and unprecedented.”
Watergate
is another example of the system under stress. In that case,
then-President Richard M. Nixon chose to resign in August 1974 rather
than remain in office and face almost-certain impeachment and
conviction. But that was in part because prosecutors enjoyed the trust
of the public and Nixon was not prepared to go against that.
“It’s
so different from the Watergate context, when there was a pretty broad
consensus in the legitimacy of what the prosecutors were doing,”
Goldsmith said. “That’s not in today’s politics.”
Nixon
was pardoned by his successor, Gerald Ford, and to this day is the only
president to have received one. Early into his term as president, Trump
consulted advisers about the reach of his pardon powers, and whether he
could pardon himself in connection to then-special counsel Robert S.
Mueller III’s investigation into Russian interference in the 2016
election.
The
Constitution says the president has the authority “to grant reprieves
and pardons for offenses against the United States.” No president has
ever pardoned himself, and the question of whether a president
legitimately holds such power has never been tested in court.
Michael Gerhardt, a law professor at the University of North Carolina, said the text of the Constitution cannot
be read to give the president that authority. “When you grant
something, you are giving it to someone else,” Gerhardt said. “It can
only be sensibly read to convey that the president has the power to give
somebody else the pardon, not himself.”
Ken
Gormley, the president of Duquesne University and an expert on the
Constitution, the presidency and the pardon power, agreed. “The idea of a
self-pardon runs counter to the entire purpose of a pardon under the
Constitution,” he said.
Nixon
asked the Justice Department for advice on this question during the
Watergate scandal. In response, the Office of Legal Counsel said
emphatically that the president cannot pardon himself. “Under the
fundamental rule that no one may be a judge in his own case, it would
seem that the question should be answered in the negative,” Mary C.
Lawton, the acting assistant attorney general, wrote in a brief 1974 memo.
Lawton
went on to suggest, however, that the president could use the 25th
Amendment to declare himself temporarily unable to perform the duties of
his office. In that case, the vice president would become acting
president and “as such he could pardon the president. Thereafter the
president could either resign or resume the duties of his office,”
Lawton wrote.
Gerhardt
pointed to legal scholarship that suggests the 25th Amendment is
intended to address disabilities such as physical or mental impairment,
and not impairment that is due to a legal problem. But those novel legal
questions never have been litigated, and if Trump did attempt to pardon
himself — or leave it to his vice president — the issues could end up
before the Supreme Court.
Nothing
in the Constitution prevents a presidential candidate from campaigning
or serving as president while under indictment or post-conviction,
although some crimes are disqualifying. In 1920, Eugene V. Debs ran as
the Socialist Party candidate while serving time in federal prison for
speaking out against the draft during World War I. He received nearly a million votes.
Another
question that has arisen is what crimes would legally preclude someone
from holding office. Among them are: “Concealment, removal, or mutilation generally,”
which makes illegal the willful theft or destruction of any government
document. Under federal law, committing that crime is punishable by up
to three years in prison and disqualifies someone from holding any
office in the country.
When
law enforcement officials searched Trump’s Mar-a-Lago property in
August 2022, the warrant listed three crimes that may have been
committed to justify the search of the former president’s residence. The
law that bars someone from being president, U.S. Code 2071, was one of
them.
Ultimately, however, federal
prosecutors did not accuse Trump of committing this crime in the
indictment. None of the crimes that federal prosecutors formally accused
Trump of committing would prevent him from being president.
Still
another legal question is whether a former president is immune from
criminal liability for actions taken while in office. The federal case
involving classified documents did not involve things done when Trump
was president. The New York case involving hush money paid to an
adult-film actress, in which Trump was charged with falsifying business
records to conceal the payment, involved actions taken before and during
his presidency.
Two
pending investigations, special counsel Jack Smith’s probe involving
Trump’s role leading up to the attack on the U.S. Capitol and Fulton
County District Attorney Fani T. Willis’s examination of Trump’s efforts
to overturn the 2020 results in Georgia, are examining actions carried
out while he was president.
Nixon was sued for damages in a civil case after firing a civilian employee. The Supreme Court, in a 5-to-4 decision in Nixon v. Fitzgerald,
ruled in his favor, saying that a president had absolute immunity from
liability for civil damages when acting in his official capacity.
“If either of those indictments [in the pending investigations] move forward, there’s going to be this question of whether Nixon v. Fitzgerald extends beyond civil liability to criminal liability,” said Vikram Amar, the dean of the University of Illinois College of Law.
Putting
aside these future questions, Amar sees an immediate threat in the
cases involving Trump, a threat to the role and power of evidence and
the public’s belief in evidence. “You can’t have a criminal system
unless evidence is going to matter, and you can’t have elections if
evidence doesn’t matter,” he said.
Amar
said he worries about the documents case because, he estimated, “There
are 30 to 40 percent of America that would never think Trump’s
conviction was fair, no matter what the evidence shows. They’ve made up
their minds that this is a witch hunt.”
The
indictment of Trump in the documents case represented a no-win decision
for Smith and Attorney General Merrick Garland, who appointed the
special counsel and allowed the charges to go forward.
In
the estimation of many legal experts, declining to charge Trump, given
the preponderance of evidence laid out in the indictment, would have
sent a signal that former presidents, or at least this former president, are above the law.
But
the indictment provided Trump an opening to attack federal law
enforcement and to further erode his political supporters’ trust in the
institutions of government.
The
possibility of an indictment in the Jan. 6 investigation adds another
layer of risk. Goldsmith sees that case as more fraught legally than the
documents case and therefore potentially harder for prosecutors to win.
It also carries additional political consequences. “Doing two cases at
once, will it be seen as piling on?” he said. “Will it be seen as making
things worse?”
Biden
also is under investigation by a special counsel, for having classified
documents in his possession. The facts of the case are very different
from those of the one involving Trump, including the fact that Biden and
his team appear to have cooperated fully with federal officials. So,
too, did former vice president Mike Pence, who also had classified
documents in his possession after leaving office.
The
Pence matter was closed without any charges being brought. The
investigation involving Biden continues. If Biden is not prosecuted,
Trump is likely to claim, and many of his followers probably would
accept, that there were two standards of justice at work, despite the
differences in the facts.
One
other investigation will affect the political debate. That involves
Hunter Biden, the president’s son, and is probing possible violations of
tax and gun laws. Federal investigators are said to be nearing a charging decision
in that case. Would indicting the current president’s son do anything
to convince Trump and his followers that the justice system is fair?
Attacks
on the legitimacy of government institutions are most virulent on the
political right, led by Trump. But many on the left also have doubts,
especially about a Supreme Court that now has a solid conservative
majority and whose rulings in cases including Dobbs v. Jackson Women’s Health Organization, which ended the constitutional right to abortion, have inflamed the political debate.
These
are likely to be the conditions throughout the coming election year. By
any measure, this represents a gloomy prospect for restoring a thriving
democracy.
“At
the level of national politics and presidential politics, things do
feel quite fragile, and I don’t have much reason to think we’re about to
turn the corner in 2024,” said Archon Fung, a professor at Harvard’s
Kennedy School of Government who studies issues of democracy.
Some
experts see small reasons to be hopeful. The institutions of government
proved to be largely resilient in the face of Trump’s attacks during
his presidency, although Goldsmith said he worries about what might
happen if Trump is elected to another term. Trump has vowed retribution
against his adversaries and would be likely to be surrounded in office
by aides who would help him execute his wishes.
Others
say that at the local level, there are signs that citizens of differing
political views are determined to try to prevent attitudes in their
communities from becoming inflamed. Ginsberg said he and Bob Bauer, a
Democratic lawyer and former White House counsel, are working with local
officials to help assure election safeguards and to educate the public
about them.
Many
of Trump’s critics wish that through the legal process, the former
president were somehow disqualified from serving again as president. The
counterargument to that is that questions about his fate and the
country’s future probably would be better answered at the ballot box
than in the courtroom.
A
conviction and a decisive defeat at the ballot box might force Trump
from the political scene and cause the Republican Party to move in a
different direction, although in an era of close elections, the prospect
of 2024 producing a blowout in either direction remains doubtful — and
even that would not necessarily cleanse the system.
“The
country functioned after the Civil War,” Galston added, “but it was a
long time before the system was drained of the political poisons of the
Civil War.”
Dan
Balz is chief correspondent at The Washington Post. He has served as
the paper’s deputy national editor, political editor, White House
correspondent and Southwest correspondent. Ann
Marimow covers legal affairs for The Washington Post. She joined The
Post in 2005 and has covered state government and politics in
California, New Hampshire and Maryland. Perry
Stein covers the Justice Department and FBI for The Washington Post.
She previously covered D.C. education. Before she joined The Post in
2015, she was a staff writer for Washington City Paper and wrote for the
Miami Herald. Twitter