Because the indictment of a former president is unprecedented in U.S. history, it has become a media cliche to assert that the prosecution of Donald Trump will “test our democracy.” The oft-expressed idea is that if the public dismisses the new charges against Trump as banana republic-style political persecution, it would show democracy failing the “test.”
But this gets the story wrong. Declaring that the indictment is testing our democracy in this way doesn’t capture what makes this moment so fraught. If anything is posing a test, it’s largely the Republican response to it.
Manhattan District Attorney Alvin Bragg’s charges are reportedly related to hush money that Trump paid to a porn actress, which has led some Republicans to dismiss them as weak. But that’s not all Republicans are saying. Many are taking the position that any charges against Trump (who has denied wrongdoing) should be seen as presumptively illegitimate no matter the counts against Trump or the facts that underlie them.
“It is beyond belief,” raged Virginia Gov. Glenn Youngkin, that Bragg “has indicted a former President and current presidential candidate for pure political gain.”
The careful reader will note that Youngkin’s complaint is not simply that the indictment itself is flimsy. That is not what makes the charges “political.” Rather, it’s that Trump was indicted at all.
Similarly, House Speaker Kevin McCarthy (Calif.) railed that the indictment has already “irreparably damaged our country” and “weaponized our sacred system of justice.” Ohio Sen. J.D. Vance called it “a direct assault” on tens of millions of Trump supporters. Another Republican called it “a threat to our Republic.” One conservative leader compared it to “old Soviet show trials.”
None of those claims is contingent on the charges against Trump ultimately proving weak. The argument is essentially that they constitute a mortal threat to the country simply by virtue of having been filed against Trump in the first place.
To be clear, the indictment itself might prove to be a weak case. Trump might be charged with falsifying business records, but to make that a felony, that falsification would have to conceal another crime. To fit that bill, prosecutors might try to classify the hush money payment as an improper campaign finance violation.
Some legal experts worry this constitutes a novel, untested legal theory. If the charges are weak, it might be reasonable to question the wisdom of the decision to bring them. On the other hand, there are reportedly more than 30 counts against Trump, so there may be grave charges we don’t know about.
Either way, these GOP responses do not leave discernible room for the possibility that the charges may prove far more damning than Republicans expect. It’s hard to see Republicans ever retreating to an acknowledgment that the process should run its course, enabling the truth to prevail.
This context is what renders the notion that this poses a “test” to our democracy so impoverished. Here’s how a New York Times analysis frames the situation:
Will it be seen by many at home and abroad as victor’s justice akin to developing nations where former leaders are imprisoned by their successors? Or will it become a moment of reckoning, a sign that even someone who was once the most powerful person on the planet is not above the law?
But if the former is a real possibility, it’s largely because Republicans are making it more likely by casting the process as inherently illegitimate in advance. If this is not stated clearly and forthrightly, Republican agency is erased from the equation entirely.
Democrats, too, have a role to play here. If Trump is acquitted of these charges and any other ones, Democrats will have to reinforce the idea that the process rendered its verdict and that it must be respected. If the process is dubious, Democrats should absolutely say so.
Voters often take their cues from elites. The degree to which senior Republicans acknowledge that the law should be applied to Trump, just as it is to everyone else, will help shape how accepting voters, especially Republican ones, are of the outcome. Are you hearing any such acknowledgment?
Even worse, some elite right-wing media figures are hinting at violence. “People better be careful, and that’s all I’ll say about that,” snarled Fox News host Jesse Watters. His colleague Tucker Carlson warned that this is “probably not the best time to give up your AR-15s.”
The position implied here is that the price of social peace is absolute impunity for Trump. The insistence that Trump must be kept above the law — no matter his wrongdoing — courses through all these GOP responses. Media accounts should centralize this fact. This appalling civic conduct is itself a major story.
Yes, a prosecution of a president is unprecedented in the United States. But as a new Post piece demonstrates, many other advanced democracies — including Israel, Italy, France and South Korea — have seen prosecutions of former presidents and prime ministers, usually for various kinds of corruption.
It’s perfectly plausible that the charges against Trump prove damning, the process is handled with integrity and Trump is found guilty — and a large swath of voters cannot accept that as a legitimate reckoning, precisely because one of our major political parties refused to acknowledge it as such.
If so, that would constitute a truly glaring failure of our “test.” Unsettlingly, it may be the most likely outcome of all.