Mon Jun 12

Yes, federal charges against a former president are unprecedented

Written by: Jared Mondschein, Director of Research, US Studies Centre, University of Sydney

Since Donald Trump announced his presidential candidacy eight years ago this week, few words have been more overused than “unprecedented”. It was unprecedented for a previously unelected politician who had never served a day in the US military or government to become president. It was also unprecedented for a US president to twice be impeached.

Yet again, there is no historical precedent for the fact that a former US president has been indicted ^[1] by the federal government. Specifically, for 37 counts and seven separate charges concerning his handling of classified documents after he left the White House.

Compounding this challenge is the unmistakable political reality that the former president, who is currently the leading candidate to win back his old job, is facing the prospect that the US government, which is currently led by his chief political adversary, could imprison him.

From the allegations that the former president colluded with Russia, to Manhattan District Attorney Alvin Bragg’s charges over falsifying business records ^[2], even many critics of the former president would admit Trump has been unfairly targeted by political opponents.

The norm-shattering former president, they posit, led Trump’s political opponents to engage in reckless behaviour that also shattered norms.

But few, if any, critics of the former president have stepped forward to say that Special Counsel Jack Smith’s indictment is political in nature.

What are the charges?

As detailed in a 49-page indictment ^[3] released late last week, the charges allege that the former president was fully aware of the laws about classified documents, as well as the fact that the documents he maintained at his residence were not declassified.

The prosecution’s evidence for this include his statements in the 2016 presidential campaign against Hillary Clinton, as well as a recording of a conversation he had at his residence that indicated that he knew ^[4] some documents in his possession remained classified.

These documents, the indictment alleges, were not merely informal papers that were perhaps over-classified. Instead, they

included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for a possible retaliation in response to a foreign attack.

According to former Trump administration Attorney-General Bill Barr, the accusation that these charges are evidence the Department of Justice has been weaponised for political purposes is “ridiculous”. On the contrary, Barr told Fox News that if even half of the “very detailed” and “very damning” indictment is true, then Trump “is toast”.

Mixing the political with the legal

Since becoming a public figure in the 1980s, Trump has been unmatched in his ability to successfully navigate countless investigations and lawsuits, seemingly without ever paying significant political or legal costs.

While few legal scholars are as confident the former president will escape unscathed in this instance, that has not changed Trump’s political strategy. Indeed, the former president’s hiring ^[5] of a new legal team may be indicative of a change in legal tact. Despite this, his political approach has remained remarkably consistent.

Within hours of being informed he was being indicted, the president and his staff had already broken the news on his Truth Social page. They had also started a fundraising campaign, and put key talking points out to his political supporters and proxies.

This strategy is straightforward: highlight the political nature of a special counsel appointed by Biden administration officials charging the former president; reiterate the lack of a prosecution for the mishandling of classified documents by Hillary Clinton and Joe Biden; and question why these charges were brought the same week that Republicans publicised their reported findings about misdeeds ^[6] by Biden and his family.

Trump can now enjoy dominating the news for the next week or more. This will leave fellow Republican candidates such as Florida Governor Ron DeSantis and former Vice President Mike Pence stuck in a news cycle about the former president instead of about their own campaigns.

Furthermore, the solid level of support Trump continues to enjoy in the Republican Party has left little alternative but for the majority of the Republican candidates to pledge their support for Trump’s innocence – regardless of what they may say privately about the man.

In the court of public opinion, one recent poll found ^[7] that 48% of Americans think the former president should have been indicted, 35% think he should not have been indicted, and 17% were unsure.

While Jack Smith will only work in the court of law, he and the Department of Justice will undoubtedly remain conscious of the public’s perception of their case against the former president.

What happens now?

It should be noted that as novel as it may be for a former US president to face a federal indictment, it is by no means unprecedented in the democratic world. As much as the former president and many of his supporters continue to call his indictment “third world country stuff”, the experience of a number of developed democracies such as France ^[8] and South Korea ^[9] indicate that political leaders facing prosecution did not fundamentally undermine their democracies.

Nonetheless, Smith appears highly conscious of the global ramifications arising from his indictment of a former president of the world’s oldest and most powerful democracy, saying “our nation’s commitment to the rule of law sets an example for the world”.

No global debate has dominated the past decade of politics more than that about the populist moment that both led to and was fuelled by Americans electing Donald Trump in 2016. Defined by an appeal to ordinary people who feel their concerns are disregarded by elites, one could perceive the charging of the apex of US elites – a former US president – as something that would quell populist sentiment. Speaking to that sentiment, Smith told the public:

We have one set of laws in this country, and they apply to everyone.

Yet, the image that will dominate news this week – that of a former president entering a federal courthouse on Tuesday for arraignment for the first time – is just as likely to reinforce Trump’s political power in the Republican Party.

Such a political grasp, which he famously said would outlast even him shooting someone ^[10] on 5th Avenue in New York City, remains unprecedented.