Today, millions of Americans will celebrate the beginning of a long overdue legal proceeding seeking accountability for a former criminal president. But the criminal prosecution of Donald Trump is ultimately years late, the indictment expected today in New York is largely misdirected, and the unfolding saga could quite likely provide the ironic key to his political revival.
The tip of an iceberg
Trump’s indictment might delight those of us aware of his history of fraud, lies, and self-serving deceit. But even an unlikely conviction would do little to heal America.
On the one hand, Trump set a new standard in public crime. From blithely inviting political violence to thumbing his nose at election results, as well as the rights of women and minorities, he consistently demonstrated everything bad about unaccountable power.
Trump’s worst crimes against our Republic included scamming the American people, a constitutional offense inviting impeachment. Yet when Democrats led by Nancy Pelosi finally showed up for impeachment after years of delay, they accepted watered down charges that conspicuously omitted any reference to stealing taxpayer money and putting it in his filthy pockets.
I’m not the only one to recognize Trump’s violations of the Emoluments Clause as the key to holding him accountable. Rep. Jamie Raskin (D-MD), who worked as a constitutional law professor at American University before his election to Congress, led the House effort to impeach Trump in 2021, following the insurrection that he invited on January 6 of that year. Raskin vocally championed accountability for Trump’s self-enrichment through public office at the time.
Despite serving as the lead prosecutor for the House, however, Raskin was overruled by Nancy Pelosi.
I’ve observed one reason (or perhaps 200 million of them) why Pelosi may have been hesitant to seek accountability for Trump filling his pockets at taxpayer expense: her similar culpability for similar offenses, particularly insider trading from which corporate executives—but not Members of Congress who craft the laws—are legally prohibited. Pelosi may have been especially hesitant to challenge Trump’s financial self-dealing given his predictable willingness to sling mud in every direction.
Ultimately, the rot Trump helped expose is systemic, far beyond the mania of a single corrupt former president.
Those of us paying attention (unlike gullible news editors inclined to construct ignorant cults of personality) might recall that Trump’s worst crimes and human rights abuses were enabled by leading Democrats whose corruption has long openly rivaled his own. These figures will remain at large even if the orange figurehead behind whom they hide is ultimately removed.
Missing the Point
The indictment expected to be unsealed in New York today will reportedly include over a dozen felonies that are normally charged as misdemeanors, all related to Trump’s payment of hush money to porn star Stormy Daniels, with whom he had an extramarital affair in 2006. To say that the charges understate his crimes would itself be a vast understatement.
White men in American politics have a long history of sexual misconduct, from President John F. Kennedy to Governor Andrew Cuomo. The fact that both nominees for the 2020 presidential election faced credible accusations from multiple sources offers a poignant reflection on the persistence of patriarchy, despite the fetish for identitarian politics that dominates the Democratic Party today.
But the indictment being unsealed today won’t address Trump’s history of toxic masculinity, or trying to overturn an election, or stealing from the American public. It will address lies he told about payments he made to keep a seemingly consensual relationship secret. Of all the issues on which to indict Trump, it is both the most trivial and also the one that, for him, could ultimately prove the most opportune.
Fuel for a conflagration
The indictment could predictably strengthen Trump, particularly by offering his supporters evidence of his self-serving and false claim to have been marginalized despite his vast privilege. His cult of personality relies on a narrative of coastal elites abusing their power and authority over working class men & women next door.
Resolving what is ultimately political controversy in a criminal prosecution places at risk the legitimacy of the judiciary (which has taken a consistent beating over the past generation as the Supreme Court has grown overtly politicized), at the same time that it politically plays right into Trump’s hands.
A number of organizations, including The Intercept, have called for Trump’s trial to be televised, and even launched a public petition supporting that position. They appear to ignore the danger of television spewing Trump’s bile directly into the living rooms (and sadly impressionable minds) of ignorant voters who have already proven themselves too unsophisticated to see through his lies.
Trump is the man, after all, who lied his way to the White House once before, largely proving the adage that there is no bad news by embracing every seemingly disqualifying scandal one could imagine. Giving him free exposure to the mass public repeats the error shared by mass media sources in 2016, which created a cult of personality around the man by making him the center of so much attention.
Many voices have criticized 60 Minutes and host Diane Sawyer for recently giving Marjorie Taylor-Green a mass media platform to spread her venom without an informed critique. Allowing Trump’s trial to be televised would compound that mistake a thousand-fold.
Ultimately, this all escalates a political crisis that Trump himself helped start. None of this pleases me—but it is also unsurprising. Note the date on the tweet below. It was far from the first—or last—time I saw a crisis coming that most instead chose to ignore.
What would real accountability look like?
In addition to the indictment being unsealed today in New York, Trump also faces three other ongoing criminal investigations: two federal investigations and one in Georgia. In addition to the Justice Department’s investigations into his misuse of classified information, it and the State of Georgia are also investigating his role in contesting the results of the 2020 presidential election.
Each of those investigations threaten the former president more than the one in New York, in several ways. The crimes they explore are more serious, less salacious, and less easily spun to his advantage in the court of public opinion. They are also more likely to influence the 2024 election, based on the sad observation that Americans have long embraced white men with problematic sexual histories.
None of these investigations, however, address Trump’s worst crimes.
If anyone were actually interested in holding Trump accountable, they’d go after the conflicts of interest shared by Democrats who match his pattern of illegal self-enrichment through public office.
I’ve called for precisely that—both in the form of policy change to prohibit congressional insider trading, as well as investigations and prosecutions of policymakers who have profited from their continuing corporate conflicts of interest. Those with the authority to initiate those steps, however, are unlikely to follow either of them anytime soon since they themselves are the ones implicated.
While foxes guard the henhouse in Washington, America is being distracted by a legal charade in New York that could ironically strengthen a wolf.
Busting Trump for lying about paying hush money to a porn star is a lot like prosecuting Al Capone for tax evasion. But while Trump might be no less a criminal than Capone, he is a former president. He should, accordingly, be prosecuted for his crimes against the public, rather than let off the hook for them and then made into a martyr by a prosecutor and judge examining only his most theatrical (rather than most serious) offenses.
Accountability would also entail keeping Trump as far from elected office as possible. And with Biden’s public support hanging by a thread in the face of a series of ongoing failures, a legal process focused on Trump’s constitutional (rather than relatively petty) crimes would be opportune.
Yet—not for the first time—Trump finds remarkable support from Democrats who claim to oppose (while instead ironically enabling) him.
Paid subscribers can access an article I wrote in 2019 calling for Trump’s impeachment in the years when Pelosi continued to claim that holding Trump accountable “just isn’t worth it.” My article was cited at the time by a leading authority on constitutional law, and made the case for the impeachment process that Pelosi refused to support when she finally showed up to take limited action.
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