With Donald Trump’s indictment on apparent charges of concealing improper campaign finances in Manhattan, all the classic elements of Trump-centric scandal-mongering are in place. There are the salacious details surrounding the transaction at the heart of the alleged offense—a hush-money payoff engineered by Trump’s since-convicted legal fixer Michael Cohen to porn star Stormy Daniels, whom Trump allegedly bedded in 2006 (which he has since denied). There’s the self-interested partisan dissection of the charges, with Democrats eagerly anticipating Trump’s long-deferred appointment with legal accountability, and Republicans righteously launching congressional investigations of Manhattan District Attorney Alvin Bragg—when they’re not also threatening more mob-led mayhem to split the country in two. The political press, meanwhile, will lurch into overdrive, with breathless speculation upon speculation on what a Trump indictment might mean for the GOP primaries, the other legal investigations of the former president’s misconduct, and the parlous state of the American republic.
Amid all this furor, it’s all too easy to lose sight of the particulars of the case. With Trump at the center of a full-bore conspiracy to reverse the 2020 presidential election and hold on to executive power via a violent coup d’état, it’s true that the $130,000 Daniels payment—initially raised through an equity loan on Cohen’s home mortgage—isn’t something that would count as a marquee instance of Trumpian corruption. But an offense very much like it was enough for former Senator John Edwards to face six charges in federal court for campaign-funding violations, after he steered more than $900,000 from his own presidential campaign coffers to support his pregnant mistress. There was no talk then of the unhinged politicization of the legal system, and no dark prophecies of civic apocalypse. It’s possible, in other words, to treat Bragg’s case against Trump not as a prelude to some operatic clash of culture-war legions but rather as a fairly garden-variety (if seamy) legal proceeding against a bad actor caught in a bad act.
“In terms of all the cases now facing Trump, this is the most pissant case of all,” says former Justice Department prosecutor Paul Pelletier, a specialist in white-collar crime. “That being said, the problem with Trump is that by continuing not to prosecute him because of his wealthy elite status…he just gets away with everything. We have this systemic risk, even though it seems like it’s too little too late this way. Michael Cohen already went to jail over it, so someone believed it was prosecution-worthy…. I think there’s a rule-of-law issue by not prosecuting this.”
Ankush Khardori, another former Justice Department prosecutor who once worked as an intern for Bragg, likewise argues that it’s perfectly fine to treat this case on its own terms, without touting the Daniels payoff as “the crime of the century.” “It can be what it is, and for all the fervor around it, if you’re Bragg, you’re saying, ‘That’s kind of not my problem,’” Khardori says. “All of these decisions involve more nuance and texture than people allow. I also don’t think this is a case that’s open and shut, all legally fine. It’s a weird, thorny little thing, especially in the ways in which it’s received and magnified and refracted through the press.”
A central theme in all that refraction is that the somewhat petty-to-grimy character of the underlying offense here—combined with a somewhat novel legal theory behind the case—might work to undermine more consequential pending actions against Trump, such as the election-tampering inquiry headed by Fulton County District Attorney Fani Willis and the federal Department of Justice probes under special prosecutor Jack Smith. But legal proceedings don’t cancel themselves out once they’re plotted out on some imaginary grid of comparative seriousness. Should Trump wriggle out of the Manhattan charges (as Edwards ultimately did in his case), the weightier Georgia and federal cases won’t be derailed. It’s not as though other repeat white-collar offenders have skated when other jurisdictions have acquitted them on lesser charges—though, of course, the court system all too often contorts itself out of all recognizable shape to ensure that they never don an orange jumpsuit.
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The longing to see Trump shackled and shamed has been a driving force of the self-styled anti-Trump “Resistance” from the outset of his presidency. The breathless anticipation around Robert Mueller’s investigation of the 2016 Trump campaign’s alleged collusion with Russia bolstered MSNBC’s ratings for the better part of two years. With Trump’s subsequent impeachments—for the effort to use military aid to Ukraine as leverage to compel President Vlodymyr Zelenskyy to launch an investigation into Hunter Biden, and then for his leadership in the January 6 coup attempt—ultimately running aground, this unquenched desire to see Trump suffer the consequences of his actions is now focused on the Bragg indictment. That’s largely why the mood among dispirited Trump opponents is now so apprehensive—and why so many commentators have rallied to proclaim that the New York indictment could actually be a political win for the felony-minded former president.
But just as the justice system is no zero-sum game, neither is electoral politics. Trump isn’t, in fact, a Sauron figure who can bend all hostile circumstances to his insatiable will to power; indeed, the very shabbiness of the Bragg indictment reminds us that he’s a venal, blame-shifting tub of pathetically thwarted appetites in an ill-fitting power suit. What’s more, it’s something of a category error to expect the legal system to do the work that organizing and messaging within our politics have left notably unfinished in combating the menace of Trumpism. The principal challenge, politically speaking, is less to punish flagrant abuses of power in court than to ensure that the party that has made such abuses the heart of its public appeal doesn’t get near power in the first place.
It’s not that the apprehension surrounding the indictment isn’t understandable—but it’s ultimately not properly scaled to a disgraced former president who’s guided his party through three disappointing election cycles. “One of the things I was worried about in 2021 is that if they didn’t do this soon, and if the Justice Department isn’t coordinating this, then Trump has a pretty clear path to reelection in 2024,” Khardori says. “But now I’m not feeling that same urgency.”
In part, that’s because the many unforced errors of Trump’s White House tenure are coming more strongly to light. Even as the mediasphere was fretting over the meaning of Trump’s pending indictment in Manhattan, outgoing US Judge Beryl Howell of the D.C. District ordered Trump’s attorney Evan Corcoran to turn over sensitive communications in the Mar-a-Lago documents case and testify before the D.C. grand jury under the crime fraud exception to the attorney-client privilege. ABC News reports that Howell’s action was prompted by evidence that Trump had lied to his own attorneys about the disposition of the documents—a development suggesting that the case may indeed involve serious underlying crimes. Smith’s investigation into that case and Trump’s role in the January 6 insurrection—together with Willis’s Fulton County investigation, which will likely produce its own indictments soon—will make it exceedingly hard for Trump and his ardent defenders to go on denouncing the accumulation of evidence here as the sinister handiwork of the deep-state cabal determined to bring Trump down. (Not that they won’t keep trying, of course.)
It’s true that the thicket of Trump-related prosecutions-in-the-making reflect a core failure to coordinate these actions at the federal level. “It was Biden who campaigned on holding Trump accountable in 2020, and then during the transition, he said he wanted to hold back on prosecutions of Trump,” Khardori says. “And the facts here are even more compelling than what Obama inherited” when Obama declined to pursue prosecutions of Bush White House abuses. But these, too, are ultimately political calculations. “The question here is whether the federal Department of Justice should be moving in, on political grounds, to coordinate these prosecutions,” Khardori says. “So people are thinking that Merrick Garland, of all people, will be saying to Alvin Bragg or Feni Willis that it’s not politically advisable to proceed? I’m pretty certain that Merrick Garland would be the last person in the country to do that.”
In the meantime, there are good reasons to appreciate the moment of Trump’s indictment for what it is—a threshold moment when the most flagrantly corrupt president in modern history starts to be held accountable. “It’s a two-tier system of justice—it will always be,” Pelletier says. “If they had prosecuted this guy for half the crimes he’s committed, we wouldn’t be in this position.” Even so, he argues that Bragg’s case is a baseline acknowledgment that “there are consequences that have to be paid for…and wow, they’re finally picking on a wealthy elite person.”
The real trick, though, is to savor that moment for what it is—and then move on to the real work ahead. “As far as justice is concerned, if what you want for the country is to see Donald Trump in prison,” Khardori says, “your first order of business is to see that he does not win in 2024—and that no Republican wins.”