Turning legal challenges to a Trump card

The recent indictment of former President Trump strikes at the heart of American democracy. Ex-President Trump has been accused of plotting to cling to power at any cost, which led to the insurrection of January 6, 2021. The allegations include violent attempts to topple the government, prevent the peaceful transfer of power, and assault law enforcement officers. Notably, Trump's rallying cry for his supporters to "fight like hell" adds gravity to the charges.

The recent indictment adds to a string of accusations, including hush-hush payments to Stormy Daniels and possession of classified documents from his Mar-a-Lago residence in Florida. He is the first former President to face charges under the Espionage Act because of his "wilful retention of national defence information".

A fourth indictment looms in Georgia for pressuring state officials to reverse the 2020 election results. These criminal charges don't necessarily bar Trump from running for a second term. The Senate had acquitted Trump in two impeachment trials in 2020 (to do with abuse of power) and 2021 (to do with incitement to insurrection). The Democrats tried to use the provisions of the 14th and 25th Amendments to remove him from office and prevent him from holding office. But they did not succeed, as the Senate did not convict him.

The main issue is whether a sitting President can spread falsehoods about an election's outcome. Special Counsel Jack Smith, appointed by the Department of Justice, asserts that President Trump knowingly propagated baseless claims of election fraud, which ultimately fuelled the events of the January 6 insurrection. This challenges Trump's claims of being victimised by the ‘deep state’ and engaging in 'un-American witch hunts'. 

Trump’s branding of Jack Smith as being ‘deranged’ and resorting to political ‘witch-hunting’, will only expose him further. Ex-Vice President Mike Pence's assertion that he chose the Constitution over Trump further emphasises the magnitude of the situation. Former Attorney General Bill Brar further underscores this sentiment by characterising Trump’s actions as 'nauseating and despicable.' 

All the charges brought against Trump are technically punishable by jail sentences. How these developments could impact Trump’s aspirations for the Presidency needs to be analysed. Trump's campaign managers have rejected Jack Smith’s indictment. DeSantis, the Governor of Florida and Trump’s rival for the Republican nomination in 2024, considers the charges against the ex-President the "weaponization of the federal government". America is witnessing two bubbles. One sees Trump's behaviour as lawless, and the other sees him as a fighter and champion. Trump is caught between campaign events and court appearances and has decided to continue his bid for the White House even if he is sentenced.

If Trump is arrested, it will open up a variety of possibilities. Familiar partisan battle lines have already been drawn. Going by the nature of the indictments, technically, it involves prison time for Trump. However, as an ex-President, whether this will actually happen remains to be seen. Legal experts debate whether Trump could potentially face arrest or, alternatively, substantial fines. Though the charges are serious, the nature of the penalties remains uncertain. Technically, there are differing views on whether a former president can be prosecuted or sued.

The Republican Party faces an acute Trump dilemma. Trump still has the support of many of the party’s big donors. If the field gets crowded, this will enhance Trump’s chances in 2024. As a nonincumbent, Trump has a good chance of getting the nomination. Trump’s support, especially among the right-wing of the party, shows that the margin between Trump and the rest is only widening. Moreover, his Republican rivals are strategically taking on the Justice Department rather than Trump directly. Yet Trump continues to be the big story in Republican politics, as he can be outrageously controversial.

Trump seems to be caught in an unprecedented balancing act between political messaging and legal messaging. So far, the political fallout of the indictments has been manageable. Trump’s logic is that if he is on trial, ipso facto the American people are also on trial. His ardent supporters say that they will vote for Trump even if he is sentenced to jail. Others argue that his best chance lies in running for office. If elected before his trial ends, Trump could potentially exploit the levers of justice to his advantage.

There has never been a President quite like Trump. His candidature under these legal circumstances is unprecedented. Past Presidents have left behind different legacies: Abraham Lincoln for freeing the slaves; Ronald Reagan for ending the Cold War. Whether Trump will go to prison for injecting the germ of election denialism, only time will tell. As of now, Trump’s strategy seems to be to convert the legal challenges into a political trump card.

(The writer is a professor in the Dept. of International Studies, Political Science, and History at Christ (deemed to be) University, Bengaluru)