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By Ross Douthat
If you intend to indict and try a former president of the United States, especially a former president of the United States whose career has benefited from the collapse of public trust in the neutrality of all our institutions, you had better have clear evidence, all-but-obvious guilt and loads of legal precedent behind your case.
The case that New York prosecutors are apparently considering bringing against Donald Trump, over hush-money payments made to Stormy Daniels that may have violated campaign finance laws, does not have the look of a slam dunk. The use of the phrase “novel legal theory” in descriptions of what the case might entail is not encouraging.
Neither are the doubts raised by writers and pundits not known for their sympathy to Trump. Or the fact that we have a precedent of a presidential candidate indicted over a remarkably similar offense — the trial of John Edwards for his payments to Rielle Hunter — that yielded an acquittal on one count and a hung jury on the rest.
The Bill Clinton-Monica Lewinsky precedent is a little less legally relevant, involving perjury rather than campaign-finance law. But the Clinton scandals established a general principle that presidents are above the law as long as the lawbreaking involved minor infractions covering up tawdry sex. If a potential Trump prosecution requires overturning that principle, then prosecutors might as well appear in court wearing Democratic Party campaign paraphernalia; the effect will be the same.
That effect does not need to benefit Trump politically to make such a prosecution unwise or reckless. An indictment could hurt him at the polls and still be a very bad long-term idea — setting a precedent that will pressure Republican prosecutors to indict Democratic politicians on similarly doubtful charges, establish a pattern of legal revenge seeking against the out-of-power party and encourage polarization’s continued transformation into enmity.
But of course, the political question is inescapable: Will an indictment help Trump or hurt him in his quest to reclaim the Republican nomination and the presidency?
Two generalizations are relatively easy to make. Even a partisan-seeming indictment won’t do anything to make Trump more popular with the independent voters who swing presidential elections; it will just be added baggage for a politician already widely regarded as chaotic and immoral and unfit for the office.
At the same time, even an airtight indictment would be regarded as persecution by Trump’s most devoted fans. So whether or not there’s a wave of MAGA protests now, you would expect the spectacle of a prosecution to help mobilize and motivate his base in 2024.
Alexander Burns of Politico argues that these two points together are a net negative for Trump. After all, he doesn’t need to mobilize his base. They will mostly be there for him, no matter what; he needs to persuade the doubtful and exhausted that he’s their man in 2024. And if even a few of these voters get weary of another round of Stormy Daniels sleaze, then he’s worse off. Burns writes, “If each scandal or blunder binds 99 percent of his base closer to him and unsettles 1 percent, that is still a losing formula for a politician whose base is an electoral minority. Trump cannot shed fractional support with every controversy but make it up on volume.”
I’m not sure it’s quite that simple. That’s because in addition to the true base voter (who will be with Trump in any case) and the true swing voter (who probably pulled the lever for Joe Biden last time), there’s the Republican primary swing voter: the voter who’s part of Trump’s base for general election purposes but doesn’t love him absolutely, the voter who’s open to Ron DeSantis but swings between the two Florida Republicans, depending on the headlines at the moment.
I can tell you two stories about how this kind of voter reacts to an indictment. In one, Trump does well with this constituency when he’s either out of the news or on the offensive and does worse when he seems weakened, messy, a loser. Hence the DeSantis bump in polling immediately after the 2022 midterms, when the underperformance of Trump’s favored candidates damaged his mystique and his flailing afterward made him look impotent. Hence his apparent recovery in polling more recently, as he’s taken the fight to DeSantis without the Florida governor striking back, making Trump look stronger than his not-yet-campaigning rival.
Under this theory, even a politicized and partisan indictment returns Trump to a flailing position, making him seem like a victim rather than a master of events, a stumbling loser caught in liberal nets. So the Republican swing voter behaves like the general-election swing voter and recoils, and the disciplined DeSantis benefits.
But there’s an alternative story, in which our Republican swing voter is invested not in specific candidates so much as in the grand battle with the liberal political establishment. In this theory the DeSantis brand is built on his being a battler, a scourge of cultural liberalism in all its forms, while Trump has lost ground by appearing more interested in battling his fellow Republicans, even to the point of hurting the G.O.P. cause and helping liberals win.
What happens, though, when institutional liberalism seems to take the fight to Trump? (Yes, I know a single prosecutor isn’t institutional liberalism, but that’s how this will be perceived.) When the grand ideological battle is suddenly joined around his person, his position, his very freedom?
Well, maybe that seems like confirmation of the argument that certain Trumpists have been making for a while — that there’s nothing the establishment fears more than a Trump restoration, that “they can’t let him back in,” as the former Trump White House official Michael Anton put it last year. And so if you care most about ideological conflict, it doesn’t matter if you don’t love him as his true supporters do; where Trump stands, there you must stand as well.
This is the rally-to-Trump effect that seems most imaginable if an indictment comes — not a burst of zeal for the man himself but a repetition of the enemy-of-my-enemy dynamic that’s been crucial to his resilience all along.
Of course, since at least some Democrats would be happy to see Trump rather than DeSantis as the nominee, you could argue that in this scenario the spoiling-for-a-fight conservatives would be essentially letting themselves be manipulated into fighting on the wrong battlefield, for the wrong leader, with the wrong stakes.
But persuading them of that will fall to DeSantis himself, whose own campaign will make one of these two narratives of Republican psychology look prophetic — the first in victory, the second in defeat.
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