What the Trump Indictment tells us about the State of American Democracy

As anyone with a smartphone knows, the Justice Department indicted former President Donald J. Trump yesterday.  While the US Government has yet to release information about the indictment, Trump’s lawyers have told media outlets that he will be tried for his mishandling of national security documents and for his subsequent obstruction of attempts by the National Archives and the FBI to repossess those files.  The move makes Trump the first former US president to be formally charged with a federal crime.

The indictment comes at a perilous time for American democracy.  Trump himself apparently considers the charges a sign that the American democratic experiment is failing, as his post-indictment communication on social media suggests.  The Justice Department move, he said, is part of a “Continuing attack on our once free and fair elections.  The USA is now a Third World nation, a nation in decline.”  More neutral observers worry that democratic norms are under pressure in the post-Trump era and that the trend lines are not promising for American democracy.  Freedom House, which ranks democracy around the world, still rates the United States as “free,” but the “city on a hill” now falls behind many other countries, including almost all of the European Union, in rankings of global freedom.  Freedom House notes that “in recent years its democratic institutions have suffered erosion, as reflected in rising political polarization and extremism, partisan pressure on the electoral process, bias and dysfunction in the criminal justice system, harmful policies on immigration and asylum seekers, and growing disparities in wealth, economic opportunity, and political influence.”

Just what does the Trump indictment tell us about the state of American democracy?  Do the charges, as Trump suggests, represent a hijacking of American democracy by the “Thugs and Radical Left Monsters” who maliciously indicted the 45^th president and presumptive candidate of the republican party in the 2024 elections?  Alternatively, do the charges demonstrate a remarkable resiliency in America’s institutions, even during a period of political stress?  The indictment is a mirror to American democracy.  What do we see?

Rule of law still prevails.  In many parts of the world, of course, rulers are never called into account for their misdeeds.  Here, a former president, until January 2021 arguably the most powerful man in the world, will answer for his alleged failure to respect laws concerning national security information.  President Trump has and will seek to portray the action as a “witch-hunt,” a politically motivated prosecution designed by the Biden Administration to eliminate a formidable political rival.  He will point to the fact that Biden himself was found to have improperly kept classified documents.  But the facts suggest that the judicial system is working as it should, no matter how challenging the political environment.  The Biden Administration has scrupulously avoided engagement in this case, going so far as to appoint a special prosecutor to conduct the investigation.  It is Trump’s apparently willful disregard for the law and deliberate obstruction of legal attempts to retrieve national security information, as opposed to a simple carelessness as in the case of Biden (or former Vice President Pence, or former Secretary of State Clinton), that is the basis for the prosecution.  The Justice Department appears to be treating Trump no better, and no worse, than other, non-presidential American citizens who have been charged with similar crimes.

Nevertheless, norms of behavior on the part of American leaders have been eroded.  Trump is not the first US president to find himself in legal jeopardy.  President Nixon avoided any potential criminal action related to Watergate with a pardon granted by his successor, and President Clinton settled with a special prosecutor rather than face charges over potential perjury in the Monica Lewinsky affair.  However, criminal activity, or the suggestion of it, has generally been seen in the past as disqualifying for political figures.  The traditional response of a national politician facing similar charges would have been to withdraw immediately from the presidential campaign to “prove my innocence and spend time with my family.”  Trump, though, is unrepentant, and in classic Trump style he has attempted to turn the charges into a political strength rather than a weakness.  In fact, Trump’s “victimization” by the “deep state” is a major pillar in his fundraising efforts.  As his campaign website urges supporters, “As the never-ending witch hunts heat up, please make a contribution to defend our movement and SAVE America…”

The republican party is largely failing to choose rule of law over narrow partisan interests.  Much of the republican party, and in particular the right wing of the party, has rallied to the former president’s support without taking the time to consider the merits of the case.  Republican Speaker of the House Kevin McCarthy, for example, responded to the indictment thus: “Today is indeed a dark day for the United States of America. It is unconscionable for a president to indict the leading candidate opposing him.”  Most prominent republicans speak in terms of “weaponization” of the judicial system, even though they have not seen the actual indictment and much of the information we have seen suggests at least the possibility that Trump may have committed the crimes of which he is accused.  Even Trump’s main rivals for the republican nomination, whose interests are presumably served by the charges, largely dismiss the possibility that the charges are legitimate.  One candidate, Vivek Ramaswamy, has even promised to pardon Trump on the first day of his administration.  In a democratic, two-party system, the fact that one party refuses to allow the judicial process to run its course before seeking to undermine its legitimacy is worrisome.

The American electorate is so polarized that Trump’s supporters are actually energized by their candidate’s legal challenges.  Yesterday’s indictment is not Trump’s first.  In April, Trump was charged in New York with falsifying business records in relation to his alleged coverup of the Stormy Daniels affair.  His polling numbers with republican primary voters went up, considerably, after he was charged.  Immediately after the indictment, Trump’s support over main republican rival Ron DeSantis jumped to 57% to 31% (they had been neck and neck in some polling in February).  In a nutshell, Trump’s hard core of support within the republican base is unimpacted by the suggestion that the candidate might be a criminal.  In fact, May polling found that more republican voters felt more positively about Trump after charges were filed (27%) than less (22%). Essentially, MAGA republicans see charges not as a sign that the former president might be a law breaker but rather that the justness of his cause is so great that his political opponents will stop at nothing to bring him down.

The 2024 elections are yet another turning point in the American democratic process, and this indictment raises the stakes.  Trump may well win the republican nomination, and current polling has Trump and Biden essentially even in a rematch of the 2020 election.  Presumably, Trump’s case will go to trial before the general elections more than a year from now, and a conviction before the elections is a possibility.  Were Trump to continue his campaign as a convicted felon, or to win election, the challenges to American democracy could well be existential.