Indictment frenzy grips the nation. Well, the news corps and punditocracy, at any rate. Here at the Portable Bohemia nerve center there is as much anxiety as frenzy. What if the case against the twice-impeached former president flames out? What if there is acquittal? What will be the implications for ongoing investigations into more serious charges?
KImberly Wehle is a contributor to The Bulwark and one of my go-to sources for analysis of the twice-impeached former president's multitudinous legal scuffles. Wehle is a visiting professor of law at American University’s Washington College of Law in Washington, D.C., professor at the University of Baltimore School of Law, former assistant U.S. attorney, and was an associate independent counsel in the Whitewater investigation of, should we need to be reminded, a sitting president.
In yesterday's column Wehle addresses three critical points:
The first is that we are in uncharted—and risky—waters, but not because of the Manhattan grand jury. We are here because of the actions of Donald Trump, which were unprecedented in pushing the guardrails of the rule of law in thousands of ways…
Politicians can lie to voters with impunity as long as the voters allow it…
But—and this is the second thing to keep in mind—the rules of courts are stricter than the rules of politics.
Which leads to the final point. Unlike for information swirling through elections, there are ample protections in place in the judicial system to ensure a fair trial by reliable evidence. The government’s burden is a high one—beyond a reasonable doubt. But the rules of evidence are strict for both sides, and Trump won’t be able to lie his way out of legal trouble the way he has lied his way out of political trouble so many times.
As always, Wehle's column is worth reading in full. Conclusion: "Trump is on trial, but the rule of law is also being tested. The most important outcome is that the rule of law wins" (Trump Indicted: Three Things to Keep in Mind, The Bulwark, March 30, 2023).
Wehle cites research conducted by Just Security, a legal website affiliated with the New York University School of Law, showing that "third-party payments covertly made to benefit a candidate are routinely and successfully prosecuted as campaign finance violations in New York and elsewhere under a variety of state and federal statutes" (Siven Watt, Norman L. Eisen, Survey of Past Criminal Prosecutions for Covert Payments to Benefit a Political Campaign, March 30, 2023). The charge that the former president is being unfairly persecuted by political adversaries is made with cavalier disregard for laws of the land. Indeed, it is leveled with unconcealed intent to undermine those laws.
Tom Nichols brought up a related issue in a column at The Atlantic:
Despite my political feelings about Donald Trump, I am agnostic on whether he should be indicted and arrested for possible financial violations involved in the payoff to the porn star Stormy Daniels…
That said, Trump himself today upped the ante by…warning all of us, point-blank, that he will violate the law if he wants to, and if you don’t like it, you can take it up with the mob that he can summon at will. This is pure authoritarianism…Once someone like Trump issues that kind of challenge, it doesn’t matter if the indictment is for murder, campaign-finance violations, or mopery with intent to gawk: The issue is whether our legal institutions can be bullied into paralysis. (Trump Did It Again, March 18, 2023)
Investigations into allegations of illegal conduct by the former president may indeed be unprecedented in number and scope. This is a function not of Democratic perfidy, political chicanery, witch hunts, but rather the unprecedented number and scope of alleged crimes, misdemeanors, and other nefarious acts that stem from unbridled egoism, sheer disdain for the constitution and rule of law, and lack of so much as an iota, a smidgen, a scintilla of moral fiber.