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The Catch-22 of indicting Trump

Does prosecuting Trump help or hurt the rule of law? Yes.

Trump seen from the shoulders up, in shadow, with the South Lawn in the background.
Trump on the South Lawn in 2017.
Saul Loeb/AFP/Getty Images
Zack Beauchamp is a senior correspondent at Vox, where he covers ideology and challenges to democracy, both at home and abroad. Before coming to Vox in 2014, he edited TP Ideas, a section of Think Progress devoted to the ideas shaping our political world.

Since the news of Donald Trump’s indictment broke on Thursday night, I’ve been thinking a lot about Alexander Hamilton — specifically, his argument in Federalist No. 69 that the presidency of the new nation differs profoundly from the old British monarchy.

A key distinction, per Hamilton, is that presidents can be punished for crimes but kings cannot: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”

He continued: “The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”

Hamilton is absolutely right that presidents (and ex-presidents) cannot and should not be above the law. There’s a reason that peer democracies like France, Portugal, South Korea, Croatia, and Israel have all recently indicted former leaders suspected of crimes: The rule of law demands that no one be above it, including (and perhaps especially) people in positions of power.

But another part of Hamilton’s argument doesn’t really fit with contemporary America: his suggestion that presidents can be indicted “in the ordinary course of law...without involving the crisis of a national revolution.”

The Republican reaction to Trump’s indictment has been nothing short of apocalyptic: a lockstep movement among the party’s top leaders to declare the prosecution illegitimate — and to propose some form of retaliation.

One Fox News host said on Thursday night the indictment is “like one of Stalin’s purges”; another said, “It’s not open for debate that we live in a police state.” The New York Young Republican Club issued a press release claiming Trump’s “soul is totally bonded with our core values and emotions,” and that his arrest amounts to “the downfall of the republic.”

To be sure, there are real questions about Manhattan District Attorney Alvin Bragg’s charges. What’s been reported so far doesn’t inspire tremendous confidence, though we haven’t seen the indictment and perhaps that will change things. But Republicans, by contrast, have concluded that they don’t even need to see the charges to decide on their merits and the underlying motivation behind them.

Republicans do not accept this prosecution of Trump — but they almost certainly wouldn’t accept any case against Trump as legitimate. Trump’s prosecution is shredding what little remaining faith the right had in America’s institutions, confirming the conservative view that our justice system is part of the “deep state” arrayed against them and their interests. In such a climate, what becomes of the ideal of presidential accountability that Hamilton envisioned?

American democracy is stuck in a Catch-22. If you don’t prosecute Trump despite evidence of criminality, you end up undermining the rule of law. But if you do prosecute Trump, you invariably spark a partisan backlash against the justice system — and thus weaken the rule of law.

The rule of law in a polarized era

America’s current lose-lose situation is, at heart, a product of America’s profound division.

Recent research by political scientists Jennifer McCoy and Ben Press examines data on what they call “pernicious polarization”: an extreme level of political strife that divides societies into mutually distrustful “us versus them” camps. In their data, going back to 1950, not a single peer democracy has experienced levels of pernicious polarization as high for as long as the contemporary United States.

The only two that came close? France in May 1968, when riots in Paris almost toppled the government. And Italy during the Years of Lead, a decade and a half of instability marked by a rash of bombings and assassinations perpetrated by far-right and far-left extremists.

In America’s radically polarized reality, nearly every high-profile government action gets coded as something that favors one side and hurts the other. Things as seemingly neutral as health policy or government regulation of gas stoves get pulled into the partisan maelstrom. Everyone’s position is determined less by an assessment of the evidence and more by what camp they belong to.

Indicting Donald Trump could never — under these conditions and regardless of the strength of the case — be anything but politically explosive. This is what separates us from some of our democratic peers who have recently indicted their ex-presidents.

South Korea’s indictment of ex-president Park Geun-hye on corruption charges in 2017 came on the heels of Park’s impeachment, which was itself prompted by a mass protest movement against her abuses of power. The prosecution enjoyed immense public legitimacy; Park’s ultimate conviction, and sentencing to 20 years in prison, sparked little in the way of backlash. Though she only ended up serving five years, the rule of law was upheld. The country moved on.

That is not how things will likely play out in the US, to put it mildly.

I’m ambivalent about the merits of the New York case (again, with the caveat that the charges have not yet been unsealed — we’ll find out soon). But if Bragg truly believes that Trump committed serious crimes, the fact that he’s a former president shouldn’t stand in the way of justice.

Moreover, there’s credible evidence that Donald Trump did commit crimes during his all-out effort to overturn the 2020 election — including his behavior during the January 6 riot. His conduct during that time was so threatening to the foundations of the American political system that we can’t risk it being repeated. If the evidence can support punishing Trump for such a serious offense, then he deserves to be punished.

But protecting the rule of law is not always as simple as “arrest the criminals, put them on trial, send them to jail (if guilty).” In the real world, the law depends fundamentally on its legitimacy: deep, abiding public faith in its principles and a sense that, in general, they ought to be obeyed. When Republicans inveigh against the justice system in such furious terms as they are now, it can undermine its legitimacy among a large portion of the population.

This behavior is certainly infuriating. Republicans have agency; they could have chosen to follow the example of Arkansas Gov. Asa Hutchinson and withheld judgment on the merits of the case until the actual evidence was presented. But we knew they wouldn’t: The GOP is thoroughly corrupted, and has been so for quite a few years. Their meltdown was predictable and, in fact, predicted. It should not be allowed to exercise a veto over the workings of the American legal system.

Yet at the same time, we should be clear-eyed about the risks of Trump’s indictment in this hyperpolarized environment. Even if holding leaders accountable is necessary for the rule of law to triumph in the long run, it’s virtually guaranteed to do damage in the short term — and potentially raise the stakes of the 2024 election to even more apocalyptic heights.

Prosecuting Trump may very well be the best of a series of bad options. These days, it seems those are the only options we have.