Dump the Politicized Case Against Trump and Make Way for Serious Investigations

The New York charges look weak, and Americans think they’re politically motivated.

If the polls have it right, the indictment of former President Donald J. Trump on fraud charges based on a hush money payment to Stormy Daniels is pretty popular among Americans. Count me among those interested in seeing politicians led off in handcuffs, though I think the experience should probably be a rite of passage for everybody who holds government office.

But there's a warning in those polls: Beyond the fact that they were conducted before we knew precisely the charges faced by Trump, they also reflect widespread belief that the indictment is politically motivated. That's troubling for the legitimacy of the proceedings, and a hint that we could see more similar indictments in the future than would suit even my appetite for political spectacle.

"Sixty percent of Americans approve of the indictment of former President Donald Trump, according to a new CNN Poll conducted by SSRS," the Trump-obsessed news network announced this week.

"A plurality of Americans think former President Donald Trump should have been charged by a Manhattan grand jury with a history-making indictment," ABC News reported of an Ipsos poll.

Both polls came with caveats.

Americans Think It's a Political Prosecution

"Most Americans (76%) believe politics played at least some role in the decision to indict Trump, who is both a former president and current candidate for the 2024 Republican presidential nomination," added CNN. "About half (52%) see it as having played 'a major role' in the decision."

"At the same time, a plurality of Americans (47%) say the charges against the former president are politically motivated," agreed ABC News.

Those opinions should be mutually exclusive, but CNN finds majorities of independents approving of the indictment (62 percent) and saying that politics played a major role (52 percent—another 24 percent say it played a minor role). Sixty percent of Democrats believe that politics played at least some role.

It seems many Americans support criminal proceedings they believe are based on partisan animus, which shouldn't play any role in charging people for breaking laws. Maybe it's Trump fatigue; surveys find popular resistance to the prospect of a Biden-Trump rematch in 2024. Thumbs-up to the indictment could be a shorthand way of asking for somebody to shuffle one of the prospective rerun candidates off the stage with even a thin excuse. And Manhattan District Attorney Alvin Bragg's allegations that payoffs to conceal an affair constitute felony violation of campaign finance laws do look thin.

Of All the Potential Charges, Why These?

"Bragg…is relying on debatable facts, untested legal theories, and allegations that are tawdry but far from earthshaking," Reason's Jacob Sullum wrote last week.

"Donald Trump deserves the legal scrutiny he's getting — which has come from many corners on many counts. Yet of the long list of alleged violations, the likely charges on which a grand jury in New York state voted to indict him are perhaps the least compelling," cautioned The Washington Post's editorial board. "Pyramiding two transgressions of state rules to go after a federal candidate is legally plausible. But the strategy is also novel, and courts may regard it with skepticism."

"Bragg's investigation arguably pales in significance compared with other ongoing investigations of the former president," agrees the Los Angeles Times editorial board. "Given those potentially more consequential investigations, some will argue that Bragg should have exercised his prosecutorial discretion and refrained from pressing this case."

But, adds the LA Times, "convicted or acquitted, Trump must not be returned to the White House."

That last point jibes with polling and reinforces concerns that the indictment is more about politics than about holding a former president accountable for crimes. In a vicious and sometimes violent political environment, there's no way to escape suspicion that a Democratic prosecutor who has a history of clashes with a Republican former president would misuse power to prevent that opponent from returning to office. If true, that's wrong. While critics of the former president rightly emphasize that "nobody is above the law," neither should anybody fall below its protections. "Untested legal theories" and "novel" strategies that would be unacceptable if unleashed on a regular person because they criminalize behavior in unpredictable ways also shouldn't be wielded to force Trump out of politics.

"Trump isn't Al Capone, an underworld figure whose imprisonment by any means unambiguously serves the public good," Damon Linker wrote for Persuasion. "His indictment has the potential to do real damage if the case against him isn't maximally solid and based on indisputable evidence of egregious wrongdoing, because he will use the effort to throw him in jail as confirmation that the corrupt system and its defenders are out to get him and the voters who view him as their champion."

That's not speculation; it's a pattern seen around the world when prosecutions become political tools.

Politicized Prosecutions Aren't an American Invention

"At first glance, prosecuting current or past top officials accused of illegal conduct seems like an obvious decision for a democracy: Everyone should be held accountable and subject to the rule of law," the University of Washington's Victor Menaldo, James D. Long, and Morgan Wack observed in 2021 when cases against political figures were underway in Bolivia, France, Israel, South Africa, and the U.S. But, they added, "if the prosecution of past leaders is brought by a political rival, it can lead to a cycle of prosecutorial retaliation."

That's not to say that Trump or any other current or former officeholder should be considered off-limits. The authors found "that both sweeping immunity and overzealous prosecutions can undermine democracy." By and large, established democracies are up to the task of holding political figures accountable for their actions. But Menaldo, Long, and Wack warned that "even in mature democracies, prosecutors or judges can weaponize prosecutions."

In recent years, commentators have warned against the misuse of swatting, child-abuse reports, and red-flag hotlines against political opponents and personal enemies. Add prosecutorial powers to that list. Threatening people with conviction, fines, and imprisonment is serious, and should be undertaken only for actual wrongdoing.

In good company among the sleazy political class, Donald J. Trump raises concerns about illegality. But as many of his critics admit, the New York charges involve the least serious alleged transgressions and most tendentious interpretations of law. Better to let other investigations of his behavior on January 6 or interference in Georgia's elections play out than to target the former president with a politically motivated prosecution. Otherwise, Bragg and company could delegitimize the legal process and invite retaliation from Republicans when they have the opportunity to return the favor.

Even my taste for making government officials suffer some of the abuses they've inflicted on the public balks at the prospect of setting off a cycle of tit-for-tat political prosecutions.