Trump Discovers That Some Things Are Actually Illegal
Following each new indictment of Donald Trump, the former president and his allies have wasted no time in attacking the case. Their complaints have gravitated toward one idea in particular: the notion that prosecutors have charged Trump for engaging in the normal work of politics.
The latest indictment, in Fulton County, Georgia, is “an example of this criminalization of politics,” commented Florida Governor Ron DeSantis—who’d made a similar comment last month about Special Counsel Jack Smith’s indictment of Trump on charges related to January 6. Jenna Ellis, who was charged alongside Trump in Fulton County, tweeted on Tuesday, “The Democrats and the Fulton County DA are criminalizing the practice of law”—a reference, presumably, to the indictment’s focus on her role as a member of Trump’s legal team working to overturn the 2020 presidential election. On Truth Social, Trump himself posted, “These monsters … are Criminalizing Political Speech, a total SHUTDOWN OF DEMOCRACY!”
These claims of criminalizing politics are themselves nothing but spin. They imply that Trump and his associates took no action beyond typical political maneuvering. Nevertheless, there’s something telling about this phrasing. Politics, it suggests, is a dirty game, where the players jockey viciously for advantage—and if the game becomes rough, well, nothing can be done about that.
[David A. Graham: The Georgia indictment offers the whole picture]
But that actually is not the case: Attempting to overturn an election and hold on to power despite the will of the voters is far from typical politics. Regardless of what Trump and other Republicans are arguing, somewhere a line does exist separating the ugly but acceptable from the potentially criminal. And prosecutors allege that Trump crossed it.
The Trump presidency generated an enormous amount of discussion about “norms”—the unwritten rules of American political life that everyone tacitly agrees to and that keep democracy functioning. Many of these norms had been somewhat invisible until Trump began shattering them, by doing things like profiting from his business during his time in office or demanding that the Justice Department investigate his political enemies.
But what makes a norm a norm is, at least in part, the fact that it’s not necessarily a legal obligation. When Trump bulldozed through these collective agreements about how politicians and particularly presidents should behave, in many cases there was no obvious means by which to punish him, legally speaking, or hold him back. Much of the public learned for the first time that many things they believed had been required by law—such as the expectation that presidential candidates release their tax returns—were essentially just gentlemen’s agreements. Trump’s actions raised this question so frequently that The Washington Post launched a podcast titled, simply, Can He Do That? Often, the Post’s reporters discovered, the answer was “yes.”
The power of the presidency is far-reaching, and Trump proved uniquely skilled at exploiting his authority in the areas where controls were weakest. In many instances, the reach of that power was precisely what had made normative constraints so crucial: For example, because the Constitution places few limits on presidential authority over the Justice Department, it’s all the more important that presidents restrain themselves from demanding that the attorney general investigate their enemies. (Trump, as the Mueller report revealed, did not abide by this tradition.)
In addition, the Justice Department’s internal guidance advises against indictment of a sitting president, reasoning that criminal charges would make it impossible for the chief executive to carry out his constitutional role. That policy helped Trump escape charges of obstruction of justice in the Mueller investigation. Instead of the threat of prosecution, the only real constraint on a president’s actions—other than impeachment, which Trump survived twice—is that of political norms. This taste of presidential power may have given Trump a sense of invincibility—perhaps a misguided one.
Among the many norms that have long held up American democracy is the shared belief that political candidates should accept the outcome of a free and fair election. And if, after the 2020 election, Trump had confined his discontent to grousing on Twitter about supposed fraud, that would have violated this norm but, in all likelihood, not have been illegal. Yet according to both Jack Smith and Fulton County District Attorney Fani Willis, Trump’s actions moved from destructively poor sportsmanship to outright illegality when he began actively scheming to hold on to power. “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won,” the Smith indictment states. But Trump “also pursued unlawful means of discounting legitimate votes and subverting the election results.”
Sometimes, then, the answer to the question Can he do that? is actually “no,” at least not legally. Consider, for example, Smith’s decision to charge Trump under Title 18, Section 241, of the U.S. Code, a civil-rights statute first passed during Reconstruction to empower the federal government to combat white-supremacist attacks on Black Americans. Courts have since interpreted the law as prohibiting efforts to interfere with both the process of voting and the accurate counting of the vote. As recently as March, the Justice Department secured a conviction under Section 241 of a pro-Trump troll who, in 2016, posted images to allegedly trick Hillary Clinton supporters into giving up their votes. Trump will certainly challenge the application of Section 241 to his case—as did the Twitter troll, unsuccessfully. But the idea that the statute prohibits some degree of chicanery around elections has been enshrined in American law for decades.
State law adds to this landscape, too. Repeatedly throughout his presidency, Trump arguably violated his own oath of office and encouraged others to violate theirs. At the federal level, the oath isn’t judicially enforceable; the president’s adherence to it can’t be investigated by a prosecutor or charged by a grand jury. It is, once again, a reflection of a normative commitment to carrying out the duties of the office in the public interest. Georgia, though, criminalizes the violation of an oath by a “public officer” in the state. And the Fulton County indictment charges Trump with soliciting Georgia officials—whom he pressured to overturn the state’s election results—to violate their oaths.
That Trump has been charged with these crimes doesn’t mean he’ll be convicted. And securing accountability for his wrongdoing is a much larger project than criminal law, whether at the state or federal level, can carry out on its own. After all, Trump will be busy campaigning for the presidency at the same time as prosecutors are hoping to bring these cases to trial—and even following a conviction, voters could still decide to grant him a second term. But the indictments are a signal that the foundation of American democracy rests on more than norms alone. These prosecutors aren’t criminalizing politics. They’re criminalizing, well, actual crimes—ones that Trump and his allies are alleged to have committed.