The indictment of Donald Trump Tuesday was unprecedented, but that distinction isn’t likely to stand.
The 34-count felony indictment in New York State Supreme Court marked the first time a former president had been charged with a crime. It is all but guaranteed not to be the last – in short order, perhaps not even the last for this president. Perhaps not even the last for him before spring turns to summer.
For all the uncertainties, a new chapter has opened in American politics and law.
“Firsts matter,” said Lawrence Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota. In this “first,” a former president was arrested and finger-printed and pleaded “not guilty” to allegations both tawdry (paying hush money to a porn star) and profound (trying to affect an election).
Now the debate begins over whether this new world and its changed assumptions will strengthen the nation’s democracy or weaken it. Did Manhattan District Attorney Alvin Bragg prove that no person is above the law? Or has he sparked a generation of other pursuits of presidents in the courts, warranted or not?
How does it play in Des Moines?
Some pundits focused on more immediate concerns: What does this mean for the Iowa caucuses?
Reports of his pending indictment boosted Trump with Republican voters in some national polls and prompted almost all his potential rivals to unite behind him in protesting his treatment as an outrage, whether they wanted to or not. Trump’s legal travails, not inflation or crime or President Joe Biden’s record, are the issues that now dominate the GOP race.
Even the calendar seems destined to entangle them. Judge Juan Merchan set the next court date for Dec. 4, weeks before the Iowa caucuses launch the Republicans’ primary season.
Hours after his arraignment, Trump was more the defiant candidate than the chastened defendant when he addressed a friendly crowd back home in Florida, at Mar-a-Lago. Despite Merchan’s instructions to avoid incendiary rhetoric and attacks on the legal system, Trump denounced Bragg as a “criminal” and Merchan as “a Trump-hating judge with a Trump-hating wife and family.”
“This fake case was brought only to interfere with the upcoming 2024 election and it should be dropped immediately,” he railed.
What are Trump’s 34 charges?:He’s accused of falsifying business records in hush-money payments
Trump goes on offensive after arraignment:Hours after arrest, Donald Trump attacks Manhattan district attorney in Mar-a-Lago speech
But his 27-minute speech – a short one, by his standards – also underscored the reality that Bragg and Merchan and a New York jury may soon be the least of his problems. He called on Georgia officials to drop their investigation into his alleged efforts to overturn Biden’s victory there in the 2020 election, and he derided the Justice Department’s special counsel, Jack Smith, as a “lunatic.”
Smith is investigating Trump’s efforts to reverse his defeat in the 2020 election, including the Jan. 6, 2021 assault on the Capitol, and the former president’s removal and retention of classified documents after he left the White House.
Both investigations seem to be nearing conclusion. In January, Fulton County district attorney Fani Willis said decisions in the Georgia case were “imminent” on whether to bring charges. In Washington, Smith in January issued subpoenas for Ivanka Trump and Jared Kushner, a move into Trump’s innermost circle that typically would be done near the end of such inquiries.
“This is just the amuse bouche before the real meal of the federal indictments to come,” predicted Jeffrey Engel, director of the Center for Presidential History at Southern Methodist University. That is, the appetizer. “Those are more important not just because they are more substantial on the face of it (insurrection vs. paying off a porn star?) but because they were crimes allegedly committed while president, not before.”
An accumulation of indictments, if they follow, will make it harder for Trump to argue he is the victim of an over-zealous prosecutor. The consequential nature of the charges will also make it harder to dismiss them as small bore, as personal, as none of the public’s business.
Takeaways from Trump’s arrest and speech:Takeaways: Donald Trump was arrested Tuesday. What you need to know about the arraignment and charges
Experts weigh in on Trump case:Trump lawyers blast DA Alvin Bragg’s case, but legal experts say they’ll regret it. Here’s why
Calibrating a legacy, from populism to impeachment(s)
After recasting the Republican Party and unexpectedly winning the White House, after a populist presidency and double impeachments, this may turn out to be Trump’s most consequential legacy.
There has never been a constitutional or legal bar to indicting presidents and former presidents, and some have come close before.
Richard Nixon was likely to have faced criminal indictments in the wake of the Watergate affair that prompted his resignation until his successor, Gerald Ford, issued a sweeping pardon. On his final day in office, Bill Clinton reached a deal with prosecutors in the Monica Lewinsky affair, giving up his law license for five years and paying a fine.
But it had never happened before, a history that made Tuesday’s indictment so breathtaking.
Trump doorman story:Indictment details $30,000 payment to doorman who claimed he had info on a child
Trump’s legal team in New York:Who’s on Donald Trump’s legal team? Meet the attorneys representing Trump.
Romney on Trump indictment:Mitt Romney, among Donald Trump’s biggest Republican critics, comes to his defense in New York case
Some historians and legal scholars argue the 45th president’s behavior left prosecutors with no choice but to plunge into unchartered territory.
“When I heard about the indictment I felt as if an infection had been lanced,” said Catherine Ross, a constitutional law professor at George Washington University, with an indictment that demonstrated a president is not above the law. “The failure to do so would not only be the worst sort of political decision,” she said, “it would send a message to future office holders that they can get away with just about anything.”
Some worry that the charges send a different message to district attorneys, though.
“Today’s indictment now opens the flood gates to the thousands of prosecutors around the country,” Jacobs cautioned. “Joe Biden is more likely to be indicted tomorrow after leaving office owing to the precedent and not necessarily his actions.”
The Iowa caucuses would be the least of it.