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
June 17, 2023 at 11:43 a.m. EDT
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 facealmost-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 R. 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, in the indictment, federal prosecutors did not accuse Trump of committing this crime. 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.”