America’s political and legal institutions are bracing for their next extreme test posed by former President Donald Trump.
Trump’s prediction on Saturday that he could be arrested this week – and his attempt to ignite a preemptive backlash – made what had been the theoretical prospect of an ex-president and 2024 candidate being criminally charged appear much more real. And it signaled America is headed for an even more politically divisive ordeal that will test his influence over the GOP.
The property developer, ex-reality TV star and former commander in chief faces multiple investigations after seeking to overturn the 2020 election and over his handling of classified documents after leaving office. But his most immediate exposure may be in a case over an alleged hush money payment to adult film star Stormy Daniels.
As of the weekend, Trump had not received any official notification that he will be charged by Manhattan District Attorney Alvin Bragg, a Democrat. But a grand jury process appears to be in its final stages and Trump’s legal team has been preparing for the possibility of an indictment, sources have told CNN.
The case revolves around whether Trump illegally covered up a $130,000 payment made by his former lawyer, Michael Cohen, to Daniels to keep quiet an alleged past relationship ahead of the 2016 election. The episode could potentially represent an infringement of campaign finance law. Trump says he did not do anything wrong and has denied having an affair with Daniels.
But the ex-president launched a characteristic effort to discredit attempts to call him to account, trying to intimidate prosecutors, mobilize his grassroots supporters and pressure top GOP officials to rally to his side. Every American has a constitutional right to political self-expression, but the ex-president’s call this weekend for his loyalists – “Protest, take our nation back” – struck an ominous tone since he showed on January 6, 2021, that he was willing to incite violence to further his interests.
Trump lawyer Alina Habba told CNN’s Paula Reid Sunday there would be serious consequences if Trump were to be indicted for a mere misdemeanor – one possible outcome of the Manhattan probe. “It is going to cause mayhem, Paula. I mean, it’s just a very scary time in our country,” Habba said. But she also said that “no one wants anyone to get hurt” and Trump supporters should be “peaceful.”
An indictment would again test the truism of the Republican Party in the age of Trump – that his grip on the GOP’s most fervent supporters is so great that most of its lawmakers and officials feel obliged to appease him in order to preserve their political careers.
Trump’s effort to politicize the case and to distract from the allegations against him has already worked as his top allies in Republican House leadership attack Bragg.
Speaker Kevin McCarthy on Sunday called it “the weakest case out there.” The California Republican, who has instructed GOP-led committees to investigate whether the Manhattan DA used federal funds to probe the hush money payment, said at a news conference that he had already spoken to Ohio Rep. Jim Jordan – who is investigating “the weaponization” of the government against political opponents – about looking into that question.
But the speaker also said people should not protest over what may or not happen and insisted that Trump didn’t want that either. “If this is to happen we want calmness out there … no violence or harm to anyone else,” McCarthy said.
Further underscoring Trump’s firm hold on the GOP base, his social media post prompted several of his Republican critics to line up beside him. Former Vice President Mike Pence, who is mulling a campaign to challenge Trump for the 2024 nomination, told ABC News, “It just feels like a politically charged prosecution here. And I, for my part, I just feel like it’s just not what the American people want to see.”
New Hampshire Republican Gov. Chris Sununu, who has said it is time for Republicans to move on from Trump, told Jake Tapper on CNN’s “State of the Union” the Bragg investigation was “building a lot of sympathy for the former president.” He added: “I (had) coffee this morning with some folks, and none of them were big Trump supporters, but they all said they felt like he was being attacked.”
The possibility that the former president could soon be charged has grave implications.
— An indictment of a former president would be unprecedented in US history and mark another dubious distinction for the twice-impeached Trump, who sought to interrupt the historic tradition of peaceful transfers of power and lied about his defeat in the 2020 election. There is no tradition of ex-US leaders being pursued by successor administrations. So, even if the cases against Trump are legally justified, prosecutors in New York, as well as in Georgia and at the Justice Department, face a perilous and uncharted moment.
— The situation is even more fraught because Trump is already an active candidate for the 2024 White House race and has already rooted his campaign in a narrative of persecution, especially regarding investigations into his conduct after the last election. He is also promising a presidency of “retribution” against his foes if he wins the Oval Office again.
— If he is indicted, Trump will still enjoy constitutional protections and the presumption of innocence ahead of any trial. At a brittle national moment, other political figures and the media will also face pressure not to respond to his efforts to inflame the situation. Trump is already seeking to portray possible prosecutions against him by the Justice Department as politically motivated weaponizations of justice, in a way that presents a fresh challenge to President Joe Biden, his past and possibly future general election opponent.
— An indictment would potentially upend the 2024 Republican presidential primary, with Trump browbeating opponents to support his claims of innocence and portraying any failure to do so as siding with what he sees as a partisan investigation for political gain. Neither Florida Gov. Ron DeSantis, a potential Republican candidate, nor former South Carolina Gov. Nikki Haley, who is already in the race, have yet commented on a situation that presents them with a dicey dilemma. But both would have a strong interest in preventing the 2024 primary campaign from revolving exclusively around Trump portraying himself as a political martyr.
— The first Republican nominating contests are nearly a year away, so it’s impossible to judge how GOP primary voters and a national electorate might react to any indictment of the ex-president. Sununu, who has also been considering a presidential run, accused Democrats of building sympathy for Trump with probes like Bragg’s in a way that could “drastically change the paradigm as we go into the ’24 election.” But there has already been a palpable sense among some voters that it is time to move on from the drama, chaos and legal thickets constantly thrown up by Trump’s behavior. The ex-president’s attempt to lift his election-denying supporters into power cost Republicans dearly in swing states in the midterms last year. An indictment would add to the debate over whether Trump’s persona and political appeal is so damaged he could not win a general election.
— A charge in the Daniels case would not be Trump’s only legal problem – or arguably his most serious one. Justice Department probes into his role in the January 6 mob attack on the US Capitol and Trump’s effort to overturn the 2020 election are still expanding. A separate special grand jury investigated Trump’s pressuring of local officials to overturn Biden’s 2020 win in Georgia. Fulton County District Attorney Fani Willis said at the end of January that decisions in the inquiry were “imminent.” While an indictment in New York might be seen as politically invigorating for Trump’s campaign, it’s hard to see how a crush of charges or trials in multiple cases would allow him to concentrate fully on a credible presidential bid.
— Any indictment against Trump would be rooted in the principle that no one, not even an ex-president, is above the law. But given the unusual nature and intricacy of the case and the opinion of some legal experts that a conviction might be a challenge, there will also be questions over whether the ex-president’s notoriety would be a factor in any decision to indict him. His lawyers might argue that someone less famous or politically active would have been treated differently.
— There is also the issue of whether the political division and trauma of putting Trump on trial would be in the wider national interest — at least in a fairly constrained case that seems to hold fewer lasting constitutional implications than those connected to the January 6 investigations. History may not look kindly on any failed prosecution.
The fact that the Daniels case dates back to an election that is now more than six years old, even as the nation faces another White House campaign, could also raise questions for the public, especially given the uncertainty about the case for anyone outside the small bubble of the investigation. Arizona Democratic Sen. Mark Kelly told CNN’s Jake Tapper on “State of the Union” on Sunday that “nobody in our nation is or should be above the law.” But he also said: “I would hope that, if they brought charges, that they have a strong case, because this is … unprecedented. And there are certainly risks involved here.”
Kelly’s comment emphasized how Trump, nearly eight years after he burst onto the scene with an upstart presidential campaign, is again shattering convention about the role of presidents and ex-presidents in national life. He again may be about to leap to the center, in the most contentious of ways, of the national psyche and political debate.
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