Trump indictments: How to tell if they’re ‘political’

If former President Donald Trump has a core defense against the indictments accumulating against him, it is that prosecutors are after him not for what he has done, but for who he is.

Mr. Trump and his allies have long argued that the federal and state charges he now faces are a coordinated political effort to derail his 2024 presidential campaign. It’s obvious, he says – he’s the faraway front-runner for the GOP nomination, and he’s the candidate Democrats fear most.

“When you look at what’s happening, this is a persecution of a political opponent. This was never supposed to happen in America,” Mr. Trump said last week after pleading not guilty to four counts of attempting to overturn the 2020 vote.

Prosecutors and Trump opponents dismiss that framing as an attempt by the former president to evade accountability for past actions. He chose to run for the Oval Office again, announcing early in an effort to establish a political shield, they say. Mr. Trump is arguing in essence that he is above the law, his opposition says.

But the bottom line, say some legal experts, is that there is no easy way to sever political concerns from legal ones in the Trump cases.

It is true that President Joe Biden appointed the attorney general who appointed special counsel Jack Smith. Many state and local prosecutors in the United States are elected, including the Democratic Manhattan district attorney suing Mr. Trump on charges related to paying hush money to a porn star, and the Democratic Atlanta-area district attorney reportedly set to indict Mr. Trump on election charges next week.

To maintain faith in the American legal system, prosecutors in the Trump cases must be extra-vigilant to try to prove their actions are driven by the law, not by politics, say some experts. The problem is that the nation faces a rocky road ahead as the Trump cases progress. Many voters in a polarized nation might judge not pursuing the former president as a political choice of sorts. Another large chunk might believe the opposite.

“Any kind of election crime is going to be inherently political,” says Anthony Michael Kreis, a law professor and political scientist at Georgia State University in Atlanta. “There are going to be political actors involved, political parties, candidates with partisan affiliation, so there are going to be those overtones present no matter what.”

Amid polarized reactions, any clarity?

Polls on perception of politics in the Trump indictments show a predictably divided American electorate. 

An ABC News/Ipsos survey released last week found that 46% of respondents said yes when asked if the election charges brought against Mr. Trump by special counsel Smith were politically motivated. Forty percent said no and 14% said they did not know.

Overall, 51% of respondents said the election charges were “very serious” in the ABC survey (14% said they were “somewhat serious”). Results were highly skewed along partisan lines: Eighty-four percent of Democrats and 53% of independents said the charges were very serious, but only 19% of Republicans.

This split reflects the nature of the defendant in this case. He is not a mayor brought up on tax charges or a county supervisor’s wife charged with voter fraud intended to boost her husband. He is one of the most famous people in the nation – arguably in the world – who commands the loyalty of millions of voters and the rapt attention of thousands of journalists.

Mr. Trump has the power to amplify his objections to his situation far beyond that of typical targets of the Justice Department or local prosecutors. But that is not a reason to refrain from pursuing allegations against him, says Kristy Parker, counsel at the Washington nonprofit Protect Democracy and a former federal civil rights prosecutor. 

“If we allow ourselves to have a system where if somebody is politically popular or has a large following and a capacity to try the case in the media, if we walk away from those sorts of people, that’s basically creating an immunity for our political class,” says Ms. Parker.

Last month Protect Democracy released what it terms a guide to determining whether the federal charges against Mr. Trump represent politicized justice or accountability. Boiled down, the guide asks three questions. 

First, is there evidence suggesting political interference with the Justice Department investigation? 

Second, is there evidence to support the indictment, and is Mr. Trump being treated as others in a similar situation would be?

Third, are courts and judges upholding Justice Department actions?

The analysis argues that all these criteria have been met – that President Biden has insulated himself from the federal cases, the cases are solid, and the legal system is working. 

“Based on what we currently know, the answers to these key questions support the conclusion that an independent Justice Department is properly seeking to hold Trump accountable,” says Protect Democracy in its guide.

One risk: a cycle of retaliation

Mr. Trump and his supporters would vehemently disagree with that conclusion. The former president has long lumped in the legal investigations of his actions with the Russia investigation and his impeachments as a connected string of “witch hunts” directed by his political opponents.

President Biden in fact keeps a close eye on the Trump legal proceedings and is ultimately responsible for their beginning, say Trump supporters. In a legal filing last week, the Trump legal team charged that an image of the president holding a “Dark Brandon” mug, posted on social media, was an oblique comment on Mr. Trump’s federal indictments.

The First Amendment and the Electoral Count Act will ultimately derail the prosecutions, says Mike Davis, a lawyer and president of the Article III Project, a Washington judicial nonprofit. He says that President Biden greenlighted the “lawfare” against his likely GOP opponent and is very much behind it.

“This is unprecedented, and highly destructive to the American democracy that Democrats are pretending to protect,” Mr. Davis says.

In a way, the damage may already have been done, he adds.

“There’s no going back now. There is no chance that Republicans are not going to retaliate,” Mr. Davis says.

That echoes the fears of many Trump opponents – that a cycle of political retaliation could swirl out of the current prosecutions. If Mr. Trump wins in 2024, he could attempt to pardon himself, or derail ongoing cases against him. Then he could break through the guardrails that are intended to separate the Justice Department from the White House and personally direct U.S. law enforcement decisions.

Currently the Trump indictments appear likely to help the former president solidify his grip on the GOP presidential nomination. Their effect on a general election is less obvious, but could well depress his vote, according to current polling.

“The bigger concerns have to do with people’s faith in and trust in political institutions,” says William Howell, a political science professor and director of the Center for Effective Government at the University of Chicago.

Whoever wins the next presidential election, a large slice of the electorate may see the outcome as a crushing loss and reflective of decay in the American political system. Mr. Trump’s hold on the GOP might tighten further – or fall apart. The health of American democracy might appear to be in question.

In 2024, “the stakes are big, and they’re much bigger than Trump’s own political fate and legal fate,” says Professor Howell.