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(Photo by Evan Vucci-Pool/Getty Images)
Republicans are screaming that Donald Trump has been indicted only because he’s running for re-election. Joe Biden is trying to prosecute his main political opponent! What an outrage!
Democrats insist that the indictments are not political. President Trump tried to overthrow the result of an election! How could we not prosecute such a thing?
I’d like to stop shouting and think fairly about this issue: How do you deafen yourself to the partisan screaming and decide independently whether the prosecutions are political?
This is theoretically easy: Imagine that Trump were not running for re-election. Would he nonetheless have been indicted?
But this is practically very hard: Precisely what is the exact counterfactual situation in which Trump is not running?
Here’s one possible scenario: There’s an election in November 2020. Biden wins. Trump denies the result of that election for two months. Trump participates in fake elector schemes. Trump tries to strong-arm Vice President Mike Pence about Pence’s power under the Electoral Count Act in the days before and including January 6. The January 6 riot occurs. On January 20, 2021, Biden assumes power.
But then we go counterfactual: Trump announces on the afternoon of January 20 that he’s given up on the hopeless business of politics. He retreats to Mar-a-Lago to play golf for his remaining days. Trump abandons social media, holds no rallies, gives no speeches, and declines all interviews. We never hear from him again.
In that counterfactual world, would Trump nevertheless have been indicted?
Stop right there.
You may or may not agree with the rest of my ruminations in this column, but my hypothetical about how to think about this issue is pretty good (if I do say so myself). Turn over in your own mind, just for yourself, the question whether, on those facts, Trump would stand indicted. That’s the whole ball game.
Okay, having thought about if for yourself, you can now read what I’m thinking.
My counterfactual is hard to imagine because Trump’s retreat from politics might have affected many other things. If Trump were no longer engaged in politics, would the January 6 Committee have bothered doing its work? Without the work done by the January 6 Committee, would the Department of Justice have investigated further? If Trump had removed himself from politics, history might have changed entirely. Perhaps no one would have unearthed the facts that the recent indictments have revealed.
Let’s think about that: The events of January 6 obviously occurred on January 6, 2021. The January 6 Committee was formed on July 1, 2021. I’ll guess that the committee would have been formed even if Trump had already disappeared from politics.
First, don’t forget that a bipartisan Senate committee promptly investigated the events of January 6 and concluded that there had been an intelligence breakdown and law enforcement failures leading up to the attack. The bipartisan Senate committee issued its report on June 8, 2021. Plenty of Democrats wanted to go further than that and investigate what caused the riot, rather than looking only at the reaction to it. Second, even if Trump were not on the scene, there were plenty of political reasons for Democrats to want to investigate the events of January 6 later in 2021. The public result of an investigation would sling mud at the Republicans, with or without Trump. Wouldn’t Democratic politicians find that irresistible? Lastly, a lot of people on Capitol Hill were still outraged by what had happened on January 6 when the House committee was formed just six months later. I thus suspect that the January 6 Committee would have done its work even if Trump had instantly vanished from the political scene.
How about the indictments? Do we see the later indictments even if Trump had retired from politics?
The easiest indictment to think about is the one relating to classified documents that Trump retained at Mar-a-Lago. Even if Trump had retired from politics, the intelligence community would almost surely have insisted that the government take steps to retrieve sensitive national security information that Trump refused to return. The government routinely indicts people who steal classified documents; I suspect it would have done so in Trump’s case. Indeed, it might have been easier to indict Trump in the documents case if Trump were out of the public eye; perhaps the indictment wouldn’t have created such a stir. In any event, Trump gave the government no alternative. The indictment for retaining classified documents would have been handed up.
How about the Manhattan DA’s indictment of Trump for paying hush money (and cooking corporate books) as part of the Stormy Daniels affair? Michael Cohen testified before Congress about the cover-up of that affair in February 2019. If the Manhattan DA were interested in how payments to Daniels were recorded on the books of the Trump Organization, the DA would have been prompted to investigate while Trump was still in office. Once the DA’s office was on notice that payments were improperly recorded on corporate books, it probably would have prosecuted the case (although perhaps pursuing misdemeanor charges rather than felonies).
And then the hard two: Would a federal indictment about the events of January 6, and the more recent Georgia indictment, have been handed up if Trump were retired from politics?
Take Trump out of the equation. Investigators would still have learned that White House Chief of Staff Mark Meadows, and Rudy Giuliani, and high-ranking Department of Justice official Jeffrey Clark, and others had allegedly ginned up a scheme to prepare and submit false electors as part of a plot to overturn the result of an election. Would prosecutors have let that slide?
I don’t think so.
My thought experiment suggests that Trump would have been indicted even if Trump were not running for re-election.
The criminal cases are being pursued in a political environment, but they were not filed as a result of politics.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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