Indictment Meltdown

It is safe to say this is more than enough legal jeopardy for a single human being to manage—especially one running for president. The campaign trail will be one long march of legal trials.
August 18, 2023
Former U.S. President Donald Trump waves after he appeared for his arraignment on June 13, 2023 in Miami, Florida.(Photo by Alon Skuy/Getty Images)

I don’t know about you, but if I hear one more person, politician, or legal analyst (I am one such person) say the word “indictment,” I am going to file a lawsuit. I am not sure who I’m suing yet, but be prepared to receive a cease-and-desist letter from my attorney.

Donald Trump’s considerable legal troubles, with indictments mounting around him like the political and fairway sand traps he often finds himself in, are getting ridiculous. I, for one, would like for it to just stop. It is safe to say this is more than enough legal jeopardy for a single human being to manage—especially one running for president. The campaign trail will be one long march of legal trials.

I realize there is a large segment of the American public that simply hates the former president, and has always despised him, with the kind of caustic antipathy that grinds teeth and makes heads go bald. For many, the various criminal proceedings against Trump evolving in Manhattan, Miami, Washington, D.C, and now Atlanta, are virtual godsends—lightning bolts in the form of crimes that carry serious penalties.

The charges are varying: falsifying business records, violating the Espionage Act, obstructing justice, defrauding the American people, subverting the count of electoral delegates, intimidating election workers, interfering with voting rights, destroying evidence, defamation, and fraudulently inflating property values and deflating declared income (soon to be filed as a civil case in New York).

This is the equivalent of throwing not just the book, but an entire library at Trump.

No defendant in American history has ever faced such an array of disparate criminal and civil accusations, let alone a presidential candidate. Ironically, a plea deal is simultaneously being worked out for Khalid Sheikh Mohammed, the mastermind of 9/11, who may be spared the death penalty. Watching from Guantanamo Bay, he must find the bloodlust for Donald Trump more than mildly amusing. Most people don’t even know his name.

No matter what others are telling you, the cases against President Trump are legally problematic. That doesn’t mean that should they ever get to a jury, he won’t be found guilty. But don’t be surprised if some, if not all of those convictions, are overturned on appeal. (And should he get re-elected, the two federal prosecutions will magically disappear either through a pardon, or dropped by a more favorably inclined Department of Justice.)

The legal theories behind the various counts of the indictments were cleverly conceived. But never before have most of them been applied to such a unique set of circumstances. For instance, invoking the Espionage Act against someone who didn’t sell or disseminate state secrets to a foreign entity, didn’t destroy documents, and, at least initially, had a right to possess them. Obstruction of a federal meeting when the law usually applies to corporate malfeasance—destroying evidence and intimidating witnesses. RICO statutes that were created to prosecute organized crime. Voter intimidation created to criminalize the Klan. Campaign finance violations in paying hush money to a porn star. Each somewhat of a stretch.

Nonetheless, tens of millions are cheerfully awaiting these trials to commence. The one in Georgia is expected to be telecast. They are all hoping for a clean sweep, culminating in lengthy prison sentences. Should any result in acquittals, expect many to jump from bridges or blow their brains out.

Republican Presidents such as Richard Nixon, Ronald Reagan, George H. Bush, and George W. Bush, experienced nothing like this. The Democratic Party once believed that the remedy for political disagreement is resolved through the ballot box.

No longer. Nowadays, nothing short of an orange jumpsuit, tailored for the rumpled man with orange hair, will satisfy Beltway pundits and coastal elites.

Perhaps that’s because the nation itself has never been this polarized. Friendly disagreement has been replaced by declarations of war. What we have now are moral absolutes by fiat. “You are absolutely wrong and disgusting” seems to be nearly everyone’s favorite go-to line the moment there is the slightest hint of a contrary view.

Hillary Clinton infamously tarred half the nation as “deplorables.” Far too many Democrats, late-night TV hosts, and MSNBC anchors actually believe that most Red State Americans are a bunch of bigots and buffoons who listen to far too much country music, drink the wrong kind of beer, cheer for the climate catastrophe known as NASCAR, engage in ungodly intimacy with cousins, watch “Yellowstone” religiously, and, frankly, are too evangelically religious.

The problem is that tens of millions of other Americans—the targets of the left’s derision—are appalled at what they see as an unrelenting contempt for patriotism, far too much casualness about border control, a creepy obsession with the transgender, and a double-standard on law enforcement. So they happily don their MAGA caps as a public demonstration of their support for Donald, knowing full well how galling such gestures are to half the country who hate him.

And no matter how many criminal cases get filed, as Trump’s fingerprints are stained with ink (expect a mug shot in Georgia), their estimation of the man will remain undiminished. He is as beloved by his base as he is despised by Democrats. No one’s vote is going to change. Trump will seek to reclaim the presidency. The will of the people, and not the courts, will decide.

I get it: there is possibly no one in America who is as reckless, undisciplined, impulsive, irresponsible, unself-aware, childish and unpresidential as Donald Trump. But that doesn’t necessarily make him a criminal.

Were there less civic discontent and public distrust of our institutions, Trump might be unelectable. Instead, we have a political landscape where tens of millions support Trump precisely because of his flaws, which they view as a measure of strength, defiance, and independence. It is a vote founded as much on spite as principle—pulling the lever with one’s middle finger.

As so often happens with prosecutors, the cases brought against Trump are overcharged. Plagued by truth problems, evidentiary burdens, state of mind ambiguities, free speech defenses, not to mention the near impossibility of selecting an impartial jury—almost anywhere! Moreover, the preferential treatment that the Biden family is receiving from the Department of Justice is starting to rot. (Whatever happened to the special counsel assigned to investigate the classified documents in President Biden’s home?)

Yes, I am aware that America is a litigious society. Legal lingo is part of our lingua franca. The iterations of “Law & Order” even define our culture. But suddenly lawsuits are dominating our politics. A bunch of them may determine the outcome of our next presidential election.

America’s Founders never imagined the soapbox forsaken for the witness box.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.” 

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