The Wrong Way to Take Down Donald Trump

There’s a better legal path to prosecuting the former president than the one being pursued by the Manhattan DA

A “truth” posted by former president Donald Trump at Truth Social on Monday, March 20, 2023.

Today’s post is cross-posted at Persuasion. Because I wrote this for both outlets, I opted for more of an op-ed style than many of my more analytical posts.

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It’s unfortunate that of all the grave acts of criminality for which former president Donald Trump could potentially be indicted, it looks like the first one for which he’s going to face prosecution is easily the most trivial one: making a payment to porn star Stormy Daniels to buy her silence about an affair. 

Seeking indictment of a former and possibly future president for a crime (something that has never happened in American history) is a very big deal that should not be undertaken lightly. Crossing that threshold with a relatively inconsequential charge seems foolish—especially when there are other options available. 

The Weakest Case

The New York state case has nothing to do with Trump’s most egregious acts—his attempts to overturn the results of a free and fair election and keep himself in office despite losing that contest. Instead, it involves events prior to Trump’s elevation to the presidency in 2016—namely, his efforts to avoid the exposure of personally embarrassing facts that would humiliate his wife if they became public.

Paying hush money isn’t itself illegal, so the DA will need to charge Trump with violations of campaign finance law (treating the payoff as an unreported in-kind contribution to his own presidential campaign) or with misdemeanors or felonies involving improper business filings (connected to covering up the payment, which was made through Trump’s lawyer and personal fixer, Michael Cohen, who has already been convicted for related crimes). Manhattan District Attorney Alvin Bragg may even attempt to combine the two charges in a way that has never been attempted before.

Securing conviction for violations of campaign-finance law is often quite challenging, because it requires proving that the accused “knowingly and willfully” violated the law. It will almost certainly be difficult in this case if Bragg attempts to apply the law in a novel way. The effort could well end up generating sympathy for Trump, even among Americans who aren’t die-hard supporters. And then there’s the chance that we end up with the worst possible outcome: a Trump acquittal.

The old adage is true: If you’re going to come at the king, you best not miss. But it’s equally true that if you’re going to try and take down a former and possibly future senior elected official, you best do so over an alleged crime befitting the gravity of the act. Otherwise, the consequences could be disastrous. 

Trump isn’t Al Capone, an underworld figure whose imprisonment by any means unambiguously serves the public good. His indictment has the potential to do real damage if the case against him isn’t maximally solid and based on indisputable evidence of egregious wrongdoing, because he will use the effort to throw him in jail as confirmation that the corrupt system and its defenders are out to get him and the voters who view him as their champion.

Rather than see him neutralized, we could well see him use prosecution and trial to raise money and enhance his political stature, with Trump acting like a martyr unjustly targeted by opponents willing to do anything and everything to tear him down, no matter how unfair and trivial. (There is also nothing to prevent a convicted and imprisoned Trump from continuing to run for president from his jail cell as a folk-hero outlaw.)

The Fraught Federal Option

Not that a federal case targeting Trump’s efforts to overturn the results of the 2020 election or his handling of classified documents after leaving office would be better. Indeed, it might be worse. 

Prosecutors routinely exercise discretion about who to prosecute for which acts of alleged lawbreaking. And, as I argued on several occasions last summer, when the person tasked with making that judgment call is the Attorney General of a Democratic administration and the alleged criminal is a former Republican president, that cannot help but look like a politicized prosecution. When that former Republican president has also declared himself a presidential candidate challenging the current head of the executive branch in an upcoming election, that looks even worse.

Many have responded to this objection by making impassioned defenses of high moral principle, including the ideal that no one, not even a past and possibly future president, should be considered above the law. Such appeals are persuasive in nearly all cases, but not in this one, which counts as a rare exception. Trump is guaranteed to turn any federal prosecution into an epic battle between himself and the rule of law, which he will portray as a noble-sounding sham concealing the baser motives of his political enemies who will stop at nothing to destroy him. That would likely have the effect of further radicalizing large numbers of his millions of supporters, whose total distrust of core federal institutions could turn them into an ominous threat to the future functioning of American democracy.

This argument is, however, most compelling at the federal level, where law enforcement acts on the basis of authority conferred by the U.S. Constitution itself and therefore with the tacit approval of the country as a whole. When it comes to state law, which has much more limited scope, the implications are far less sweeping. For that reason, I’ve also taken the position that if Trump is going to be arrested, tried, and potentially convicted, it would be far better for it to happen in state court—provided the evidence is strong and the chance of conviction high. 

The Best Alternative

That’s why the case being pursued by Fulton County District Attorney Fani Willis in Georgia is by far the strongest one. It involves possible racketeering and conspiracy charges against Trump, based on recorded phone conversations in which the president pressured Georgia Secretary of State Brad Raffensperger to “find” the votes necessary for him to win the state outright and close the Electoral Vote gap separating him from Joe Biden. Charges stemming directly from Trump’s efforts to overturn the 2020 election—by far the worst thing the former president has been accused of—rise above the petty character of the pending indictment in New York. 

The stakes in these and other criminal investigations swirling around Donald Trump are enormous. America’s Trump problem is at bottom a political problem, not a legal one. The surest way to neutralize him is for him to lose and keep losing, by the widest possible margin, in the political arena. Throwing him in jail is of secondary importance to that end, and may even make achieving it more difficult.

I for one hope the Manhattan charges don’t materialize, Attorney General Merrick Garland takes a pass, and Georgia’s case takes the state-level lead in prosecuting the former president. But even more so, I hope Trump decisively loses the Republican nomination—or, failing that outcome, that he goes down to an unambiguous, humiliating defeat in the 2024 general election. There’s no surer way for America to rid itself of its most dangerous political threat.