When (Not If) a Former President Gets Indicted

Last week’s headline: “When (Or If) a Former President Gets Indicted” has now been officially updated. So let’s now consider what it means to have a former president facing criminal charges. As this is being written, Donald Trump is preparing for mug shot and fingerprinting, and the media circus at New York City’s Manhattan courthouse will be unprecedented and unfathomable. And Trump’s post-arrest speech will almost certainly receive more public attention than anything that Joe Biden has said or done in many months.

But once the post-perp walk sugar high wears off, the most prevalent emotion that most Americans will be feeling is not anger, but exhaustion. The election is now 19 months away, but it is going to feel like 19 years. Both Trump’s most committed supporters and opponents are girding for a political, legal and cultural war that will consume the country’s foreseeable future. Just the thought of it is emotionally draining.

This is not the court battle that the anti-Trumpers would have chosen. The question of the former president’s business accounting practices and even his campaign finance violations seem fairly trivial given the tremendous stakes involved. And the extra-marital affairs, hush money allegations and general tawdriness are more distasteful than constitutional, regardless of where one may have stood a quarter-century ago during the Clinton impeachment. Trump’s other high-profile legal confrontations – the Georgia vote counting, the confidential documents at Mar-a-Lago, and especially the January 6 Capitol attacks – are all much more important challenges for our country and its future. But as Donald Rumsfeld once said under much different circumstances, "You go to war with the Army you have -- not the Army you might wish you have."

There is also no guarantee that the Stormy Daniels matter will be the only pending criminal probe against Trump that results in formal charges being filed. The prosecutors in these other cases will presumably decide whether to move forward with charges based on the strength of the evidence that each of them have compiled, without regard to the others. But the men and women preparing these cases are not just attorneys: they are human beings. And it’s impossible to believe that the historical impact of filing the first legal charges against a former U.S. president since our nation’s founding has not weighed heavily on them. So it’s easy to see that the chances of one or more of the other cases going forward have increased considerably.

As we discussed last week, the most commonly held conventional wisdom currently posits that Trump will benefit from these circumstances within a Republican primary as his loyalists cluster to his side, but he will be harmed in a potential general election as other voters are reminded of the aspects of his presidency that they liked least. (There’s no way to know for sure, of course, because the country has never considered the presidential candidacy of someone who has been indicted on criminal charges.) Public opinion polling already bears out the first supposition: Trump’s lead over presumptive challenger Ron De Santis has more than doubled in the days since the indictment, and his online fundraising has increased considerably as well.

But general election matchups against Biden have not seen much of a shift to date. Most leading Democrats have so far avoided heightened language on the indictment, believing that a more aggressive approach would frame the matter in more starkly partisan terms with swing voters. Biden’s party may have to reconsider that strategy at some point, if only to remind voters of the potential negative impact of an indicted – and possibly convicted – president in the White House.

Regardless of how the political debate surrounding a Trump trial progresses, it will almost certainly dominate the public conversation through next November -- and possibly much longer. My personal wish would be for a president who is not Donald Trump, but also one who does not owe his or her election to the fact that they are not Donald Trump. He has already dominated the political discourse in this country for eight long years and wholly overshadowed his rivals (even in defeat). That trend will not conclude any time in the foreseeable future – win or lose, the Trump Era is far from over. Our country has serious challenges to confront, but it now seems naïve to hope that those challenges will be at the center of next year’s campaign.