After Monday’s late-night filing in Georgia, we have finally seen them all: Every single known criminal investigation into Donald Trump has produced an indictment.
The former president is now facing four trials on 91 separate counts whose maximum sentences, put together, amount to hundreds of years of prison time (though it’s unlikely Trump would receive the harshest possible sentence in each case). The cases’ verdicts will not “merely” determine Trump’s fate. They could be the closest thing we can get to official pronouncements on some of the most pressing political issues in American politics.
In the two most important cases, the new Georgia indictment and special counsel Jack Smith’s federal January 6 indictment, the key question is whether Trump’s effort to overturn the results of the 2020 election constituted a crime against the American people. In the lesser cases, the Mar-a-Lago document retention and New York hush money cases, the core question is whether Trump’s well-documented habits of lying and unethical behavior led him into outright criminal territory.
With such weighty issues on the line, juries will be deciding more than Trump’s guilt or innocence on specific charges. They will be issuing a broader ruling: determining if Trump and Trumpism have, beyond a reasonable doubt, run afoul of America’s democratic system and the rule of law.
Such a trial is unprecedented in American history, but it is exactly what’s supposed to happen in a democracy when a political leader (allegedly) commits crimes against democracy. (Trump denies he committed any crimes.)
Democracy is, at the very highest level, a system for turning the idea of human equality into practical political reality. When leaders can get away with whatever they want, there is no real political equality: We are electing kings, not fellow citizens. If powerful actors try to act above the law, independent institutions need to check their misbehavior.
Criminal prosecution is the ultimate recourse in such cases, and one not infrequently employed in peer democracies. Of course, the charges should not be frivolous or politically motivated — but the allegations against Trump, with the arguable exception of the New York case, are neither. The Georgia and federal cases are legally serious and factually well-supported; it is a sign of health for America’s institutions that prosecutors are not so cowed by Trump’s political influence that they fear the consequences of challenging him.
Yet at the same time, there’s good reason to doubt that the legal system is capable of solving the problem it’s been tasked with handling.
The federal judiciary has been deeply politicized, as has the public’s evaluation of the merits of the various cases against Trump. These developments both reflect a deeper problem: In profoundly polarized societies, like the United States, seemingly neutral political institutions become pulled into and warped by conflict between social groups.
It’s unlikely a guilty verdict would settle the question of Trump for good; for Trump’s core supporters, his word beats anyone else’s — a jury’s included. Polling data suggests the cases are not hurting his bid for the GOP’s 2024 nomination; if he’s the nominee, he’s essentially guaranteed a reasonable chance at winning the presidency and gaining access to its expansive powers. In this sense, America appears depressingly similar to Israel, where the ongoing corruption trial of Prime Minister Benjamin Netanyahu is fueling the gravest democratic crisis in the country’s history.
The Trump prosecutions are thus revealing a paradox at the heart of American democracy: its institutions are at once both strong and weak.
They are strong, in the sense that many act the way they should in an advanced democracy — taking legal steps to defend the system against the novel Trumpian threat. They are weak, in the sense that they lack the universal public legitimacy to fully quash the threat through these legal means — a reflection of the fundamental social divisions that gave rise to Trump in the first place.
This paradox could shape not only the political consequences of the four Trump trials, but the long-term prospects for the survival of the world’s oldest democracy.
Where American democracy works
In political science, healthy democracies are often referred to as “consolidated democracies.” It’s a typically bloodless academic term, but it refers to an important idea: that democracy becomes truly stable when it is understood as “the only game in town,” meaning that basically all relevant political players accept that free and fair elections should determine who gets to wield power.
In a completely consolidated democracy, this most fundamental rule of the political game is accepted by all. Challenging it would be as absurd as a football player demanding 20 points after scoring a touchdown.
Trump’s challenge to the 2020 election threw America’s status as a consolidated democracy into question — as did, in a less obvious way, his habit of ignoring laws and political norms whenever he felt like it.
In a 1996 article, leading political scientists Juan Linz and Alfred Stepan wrote that democracies check such potential threats from elected strongmen through the rule of law — enforced, primarily, through countervailing political institutions that can prevent leaders from going out of control. Achieving full democratic consolidation, they write, means “that the government and the state apparatus would be subject to the law, that areas of discretionary power would be defined and increasingly limited, and that citizens could turn to courts to defend themselves against the state and its officials.”
Read through this institutional lens, the American system’s response to the Trump threat can be seen as impressively robust.
In 2020, Trump’s absurd legal arguments against the election results failed over and over again in court, often in front of Republican-appointed judges. His supporters’ effort to overturn the election by force on January 6 didn’t work either. The new Congress passed a bipartisan bill reforming the Electoral Count Act, one explicitly designed to block any future presidential candidate from using the same (dubiously) legal tactics Trump employed to try to overturn the election.
In the 2022 midterms, election deniers running for governor and secretary of state in swing states lost every single time they were on the ballot. Earlier this year, the Republican-controlled Supreme Court repudiated a key Trumpian legal argument — the so-called “independent state legislature” theory — that would have given a green light for state legislatures to rig future elections in Trump’s favor.
Put together, this looks like a striking display of democratic resilience. Faced with a serious challenge, all sorts of independent power centers inside the American system reacted in exactly the way they should — by using their authority to defend the integrity of the country’s elections.
Young and weak democracies are not always capable of such a response. In such countries, institutions are often corrupt or heavily politicized; the people who staff them have little interest in neutral defenses of democratic principle when said principle clashes with their bottom line or political party’s hold on power. In a place like Hungary, where democracy exists only on paper, the government can do basically whatever it wants. Election rules are rigged in the ruling Fidesz party’s favor, and the captive courts are not a serious check on Prime Minister Viktor Orbán or his parliamentary supermajority.
The autoimmune response of American democracy, by contrast, reflects a degree of consolidation. Key sectors of the public and the elite do, in fact, see democracy as “the only game in town” — a commitment which led, logically and necessarily, to Trump’s prosecution.
The cases against him are generally serious and above-board efforts to punish Trump’s attack on the democratic system or (in the Mar-a-Lago documents case) flagrant disregard for legal constraints on his behavior. Prosecutors have presented solid evidence of serious misconduct; it would be more political not to bring a case against Trump under the circumstances.
This does not mean that democracy requires Trump be convicted; that’s for a jury to decide. But it does mean that prosecutors had a duty to investigate Trump’s behavior and, if the facts warranted it, file an indictment. Absent such efforts, the entire endeavor to protect American democracy would suffer from a glaring flaw: an inability to actually enforce laws that seem to proscribe anti-democratic behavior. American democracy would fail Linz and Stepan’s test of whether “the government and the state apparatus would be subject to the law.”
This is why many countries that qualify as “consolidated” under the traditional definition have prosecuted former leaders. Writing in the Conversation, a trio of scholars who have studied such prosecutions argues that “in mature democracies, prosecutions that hold leaders accountable can solidify the rule of law.” Recent South Korean history is, for them, a good example of this dynamic at work:
South Korea investigated and convicted five former presidents starting in the 1990s, a wave of political prosecutions that culminated in the 2018 [conviction] of President Park Geun-hye and, soon after, the conviction and imprisonment of her predecessor, Lee Myung-bak.
Did these prosecutions deter future leaders from wrongdoing? For what it’s worth, Korea’s two most recent presidents have so far kept out of legal trouble.
South Korea is a much newer democracy than the United States, existing only since 1987. As a result, the authoritarian legacy is still visible in Korean politics: Former President Park, the one who was sent to prison in 2018, is the daughter of former military dictator Park Chung-hee.
As a general rule, older democracies tend to have more robust and independent institutions, as they’ve had more time to establish their independence and gain legitimacy among the citizenry. If prosecutions of former leaders can be a sign of democratic consolidation in a country like South Korea, they should be the same in the United States.
Where American democracy is weak
There’s a problem with the South Korean parallel, however: Its prosecutions seemed to enjoy significant public legitimacy. That’s not the case when it comes to the Trump indictments — a finding that speaks to the weakness of American institutions that sits, paradoxically, alongside their strength.
A recent Associated Press poll found that a bare majority of Americans, 53 percent, support the Justice Department’s decision to indict Trump for his behavior in the 2020 election. This top line, as you’d imagine, hides profound partisan splits; 85 percent of Democrats approve of the prosecution, while just 16 percent of Republicans do.
A July poll on the other federal case, relating to improper possession and storage of classified documents at Mar-a-Lago, is striking in a different way. It found that 50 percent of Republicans did not believe that there were classified documents at Mar-a-Lago at all — a fact that is not actually in question, as there are undeniable photographs of said documents at Trump’s residence in the indictment.
An August poll from the New York Times found that just 17 percent of Republicans and Republican-leaning independents believe Trump has committed any “serious” federal crimes at all. An additional 10 percent said they believe Trump “did something wrong” but not seriously criminal in his handling of classified documents, arguably the case where Trump’s guilt is (in purely legal terms) the most clear-cut.
These findings are not outliers: Over and over again, pollsters find that a majority of Republicans do not believe Trump is guilty of any crimes and suspect the prosecutions are being brought for essentially political reasons.
This reflects not only deep support for Trump in the Republican Party, but widespread distrust in American institutions and acceptance of Trump’s views about the legitimacy of the electoral system. A July poll from Monmouth found that 68 percent of Republicans believe Biden won the 2020 election “due to voter fraud,” a figure nearly identical to Monmouth’s findings in the weeks immediately after the election.
These numbers reflect a certain hollowness in the American institutional response. Despite the strikingly robust effort by elements of the political system to defend itself, the system is incapable of addressing the root of the problem: authentic support for Trump’s authoritarian actions and worldview.
Go back to the initial definition of “consolidated democracy:” one where democracy is “the only game in town,” so deeply rooted that questioning its rules and basic principles is basically unthinkable among major political actors. So long as Trump retains such a grip on Republican voters, and the Republican Party leadership backs him out of fear of angering those voters, this simply will not be the case in the United States — no matter how hard institutional actors, including some Republicans, work to make it so.
Trump’s personality and political movement are fundamentally at odds with democracy’s core principles. In the American system, anyone who leads a major party has a decent shot at the presidency — and thus a decent shot at gaining a degree of power that would allow him to once again flout the rules and institutions designed to hold him accountable.
A self-pardon on the federal charges seems almost inevitable if Trump wins again, and it’s unlikely he’ll stop there. Trump and his allies are already planning how to use the presidency to undermine the federal and state prosecutors trying to hold him accountable, reportedly even hatching a scheme to arrest Manhattan District Attorney Alvin Bragg.
Back in 1996, Linz and Stepan argued that a leader who enjoys a degree of public support for such brazen attacks on the rule of law necessarily undermines democratic consolidation.
“A democracy in which a single leader enjoys, or thinks he or she enjoys, a ‘democratic’ legitimacy that allows him or her to ignore, dismiss, or alter other institutions — the legislature, the courts, the constitutional limits of power — does not fit our conception of rule of law in a democratic regime,” they write. “The formal or informal institutionalization of such a system is not likely to result in a consolidated democracy unless such discretion is checked.”
There’s a Catch-22 at work here. On the one hand, checking an authoritarian threat like Trump requires independent action by key institutions. On the other, the very reason the authoritarian threat exists — Trump’s strong popular support in one of two major political parties — makes it hard for institutions to take definitive action.
This illustrates the paradox of American democracy: The institutions are both strong and weak. Strong in the sense that they are capable of coordinated action to defend democracy; weak in the sense that they lack sufficient bipartisan legitimacy to address the fundamental reason why democracy needs defense in the first place.
Hence why some of the most effective legal tools for stopping Trump remain unused. Senate Republicans could have convicted Trump in his post-January 6 impeachment trial and barred him from holding public office again; they chose not to because they were afraid their voters would choose Trump over them. There’s a very strong case that Trump is constitutionally barred from holding office under Section 3 of the 14th Amendment, but it’s unlikely that any election officials will try to enforce this rule for fear of causing a political earthquake.
Under such conditions, nonpartisan institutions can only do so much. Trump can run for the presidency from a jail cell if he wants. Given how narrow presidential elections are in the US, and how many things could happen to the economy or Biden’s health between now and November 2024, it’s even possible he could win from one.
The ominous Israeli parallel
Ultimately, I fear, America is less like South Korea than Israel.
In that country, Netanyahu is trying to evade conviction on corruption charges by seizing control over the judiciary. He has successfully rammed through the first piece of his judicial overhaul despite the largest protests in the country’s history, ones that stopped his first attempt at a power grab back in March.
Israel’s Supreme Court is now set to hear a case on the legality of the overhaul in September, setting the stage for a constitutional crisis — one where the court rules against the government’s law and the government declares it doesn’t recognize the validity of the court’s ruling.
Why did Israel experience a crisis when South Korea did not? There are several reasons, but one of the biggest is a much higher degree of underlying social polarization and conflict.
Israel is not only split between Jews and Arabs but between differing groups inside the Jewish majority, with different segments of the population holding profoundly different and mutually exclusive visions for the country’s identity. On Netanyahu’s side, a segment of the population wishes to deepen Israeli control over Palestinian territory and/or expand privileges for religious Jews at the expense of the secular. On the other side are a range of different Jewish groups united in the belief that Netanyahu and his allies are an existential threat to Israel’s character as a state that’s both Jewish and democratic.
In Israel, the same paradoxical situation — strong institutions attempting to check misconduct under conditions of weak trans-partisan legitimacy — has led to a political crisis. The United States may be in for the same.
Like Israel, America is going through an identity crisis. Trump’s core support rests on a segment of the population alienated from the American mainstream, wedded to a vision for the country rooted in their angst about its changing ethnic composition and social norms. Such potent grievances, which touch on people’s fundamental sense of place and even self, fuel Trump’s support and make it very hard for neutral institutions to break through and convince people — even ones committed to democracy in theory — that their guy is the problem.
Under such conditions, institutions can only go so far.
Trying Trump is good and necessary, as are all the other steps that have been taken to safeguard democracy since his ascent to power. But they will be incapable of fully solving the problem on their own so long as Trump and his allies retain an iron grip on one of our two major parties.
It’s a political challenge that can only be handled in the most political of ways: at the ballot box.