AMAC Exclusive – By Daniel Berman
The Trump indictment is a watershed moment in more ways than its possible impact on the 2024 election. It has the potential to seriously degrade both political and legal norms at home, while also harming the image of the United States internationally, all things which Trump critics accused the former president of doing for years.
There are three major issues with the Trump indictment.
The first is the weakness of the legal case itself, which threatens to undermine the legitimacy of the American legal system and further polarize American politics.
The second is the damage to democratic norms in general.
The third is how the indictment underscores an increasingly glaring contradiction between the values and norms the Biden administration and United States purport to promote globally, and those which are currently being practiced at home.
Of these issues, the first has received the most attention in the press, not least because it represents the anxiety of a media establishment that has always been militantly hostile toward Trump. Their concern is not whether Donald Trump has been charged unfairly, but rather that the indictment is so thin that it might fail to remove him from the field.
Writing in Vox, Ian Millhiser, famous for calling both for the abolition of the Senate and the expansion of the Supreme Court, called the legal theory behind the indictment “dubious,” as “It is unclear that the felony statute that Trump is accused of violating actually applies to him.”
In the Washington Post, Ruth Marcus, a graduate of Harvard and Yale Law School termed the indictment “a dangerous leap on the highest of wires,” while the entire editorial board blasted it as “a poor test case.” Writing in Politico, Renato Mariotti bemoaned “The gaping hole in the middle of the Trump Indictment.”
The concerns expressed over the weakness of the case are not for the rule of law nor for Donald Trump. The Washington Post Editorial Board goes out of its way to make clear their view that “Donald Trump deserves the legal scrutiny he’s getting — which has come from many corners on many counts,” while another piece in Politico aptly entitled “Trump seems to be the victim of a witch-hunt. So What?” suggests, “It’s hard to believe prosecutors would bring this case against anyone else. But that doesn’t mean they’re wrong.”
Missing is a wider concern about “norms” that we have heard so much about from the political left. Another article in Politico by Bernard Avishai suggests Trump is following the “Netanyahu playbook,” warning that “Israel’s democratic crisis could soon become America’s.”
But what, precisely, is Israel’s “democratic crisis?” The heart of that matter is about how Israeli voters have repeatedly elected Benjamin Netanyahu to lead them, most recently in November 2022, the polls still show him leading alternative Prime Ministers by nearly 2-1 margins, and yet the Israeli judicial system allows an attorney general appointed by an unelected court to declare any Israeli ineligible to hold any elected office, including the prime minister, on the basis of “bringing discredit to the state.” This can qualify as pleading guilty to misdemeanors, which do carry jail sentences.
In fact, Israel is a prime demonstration of precisely how a justice system which is all powerful and politicized can produce democratic crisis. Not only Netanyahu, but three of the past four prime ministers have faced criminal prosecutions which helped drive them from office. Another, Ariel Sharon, was arguably only saved by a stroke.
In a system where any prosecution, even if politically motivated, can provide a pretext for an unaccountable elite to disqualify their political opponents from holding public office, incentives exist to pursue petty charges that would never be considered against private individuals in other contexts.
There used to be a term for this sort of thing, one used by the State Department: “Soft Coup.” It is what the United States called the decision of the Turkish Constitutional Court, backed by the army in 1997, to dissolve the Welfare Party, which had won the 1996 elections, and imprison the prime minister.
This strategy was also used by a former member of that Welfare Party, current President Recep Erdogan, to prevent the Mayor of Istanbul from challenging him in this year’s elections by charging him with defamation for calling a decision of the Interior Minister “stupid.”
In Brazil, current President Lula da Silva was prevented from running against Jair Bolsonaro in 2018 on the basis of corruption charges. Lula now seems determined to return the favor by charging Bolsonaro with something in order to prevent him from running in 2026.
It is foolish to think the rest of the world will not take notice of the same scenario playing out in the United States. Mexican President Andreas Lopez Obrador, when asked to comment on the indictment of Donald Trump, warned it represented “the degradation of due respect for the law,” when “legal issues” are “used for electoral, political purposes.”
This is not a new phenomenon, and in fact derives from human nature. Those who have power will do almost anything to keep it, and stable government requires restraining our worst instincts, while also accepting that they exist.
The American Founding Fathers were, in this matter as in most others, wiser than their peers in drafting the American Constitution. While most Constitutions provide for some form of parliamentary immunity, the Founders recognized the futility of trying to separate politics and law.
At the heart of such immunity lies a contradiction. If a member of parliament possesses immunity, can they commit any crime, including murder and treason? And if not, the decisions of which crimes their immunity covers and which it does not are subject to the same judicial systems with perverse incentives, with the result that the immunity is no immunity at all for those out of power and total for those within.
By contrast, the American Constitution sought to confront reality by recognizing that the prosecution of politicians is a political process.
Executive and judicial branch officials are subject to impeachment by Congress. Only the House of Representatives, not prosecutors or grand juries, can indict judges or the president. Only the Senate, not judges or any court, can convict them.
As for members of the House and Senate themselves? They are the sole judges of their own membership. Courts and state boards cannot remove them from office. They can suggest and determine, but the final decision on who to seat and who to expel rests solely with the chambers themselves. It is political, but it is honest.
The two impeachments of Donald Trump, like the impeachment of Bill Clinton and that of Andrew Johnson, were political decisions, despite the efforts of certain individuals to dress them up in high-flying rhetoric. The charges were ultimately political. The decision to pursue them was political.
The Democrats in the House chose to pursue Donald Trump for a phone call with the Ukraine for political reasons, much as the House Republicans chose to go after Bill Clinton for the Monica Lewinsky case, and not for campaign finance violations involving foreign nationals or other financial dealings where the legal case against a private individual would be greater. The arguments for impeachment were political. The result in every single one of these cases was that the choice was left to the voters, whether in 1868, 2000, 2020, or 2024, to pass judgement. The post-election legal pursuit of Donald Trump is a departure from this, as the Mexican President observed. The indictment is equally political as the impeachments, but represents an effort by Alvin Bragg to deny voters the right to decide for themselves if Donald Trump is a “threat to democracy” as the left claims. It is a move by a man elected by 7 million voters in deep-blue New York City to deny 270 million American voters the right to make their own determination over the next two years, motivated by the fear they will make the “wrong” one.
The Founding Fathers were right. President Obrador, and I will not say this often, is right. Forget the merits of the specific legal case. In democracies, the choice of leaders is political, and it should be in the hands of the voters. Involving the local legal apparatus “degrades” the justice system and produces the very sorts of “democratic crisis” which have afflicted Turkey, Brazil, and most recently Israel. We have avoided them so far. Alvin Bragg is now endangering a 230-year record of success.
Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.