Tue Jun 13

For Joe Biden, the indictment of Donald Trump carries a heavy responsibility – and a risk

Written by: Emma Shortis, Lecturer in HIstory, RMIT University

In September last year, US President Joe Biden spoke to Americans ^[1] from the “sacred ground” of Independence Hall in Philadelphia – the birthplace of the Constitution of the United States. In that landmark speech, Biden warned Americans, and indeed the world, that:

Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic.

Less than a year later, American democracy is being subjected to yet another stress test ^[2] – one to add to an already exhaustingly long list.

As former President Donald Trump has been indicted for the second time in months – this time on federal charges – Biden must navigate uncharted territory. He could soon be faced with trying to win an election against an opponent being prosecuted by the government he leads.

At the same time, as he said in September, Biden is attempting to unite Americans “behind the single purpose of defending our democracy”.

Is it possible for a president to do both at once?

Trump is facing a 37-count indictment related to his handling of classified documents after he left office. Chuck Burton/AP

Defending the rule of law

Biden came into office under the shadow of a violent attack on American democracy. The near-success of the January 6 insurrection on the US Capitol felt like it could have been a test run – one that might be repeated, given the chance.

Biden insisted the integrity of American democracy thus requires accountability. As he put it ^[3],

American democracy only works only if we choose to respect the rule of law.

To Biden, ensuring this respect for the rule of law meant restoring the reputation and the integrity of the Department of Justice after the Trump administration ^[4]. As part of this, Biden nominated Merrick Garland for the position of attorney general.

Garland had previously been nominated for a seat on the US Supreme Court by then-President Barack Obama in 2016. Republicans, however, refused to schedule nomination hearings until after the presidential election, thwarting Garland’s bid to join the court. Garland’s conduct then – and throughout his career – assured many that as attorney general he would act with integrity and, perhaps most importantly, political impartiality.

Garland has been nothing but consistent in this position. After his appointment, Garland said ^[6] he would avoid “any partisan element of our decision-making about cases”. Garland is also, like Biden, staunch in his insistence that “no person is above the law in this country” – not even former or aspiring presidents.

In a functioning democracy, both things must hold at once.

When it comes to investigating Trump’s alleged activities, Garland has sought to ensure his department can do both – remain above the political fray, while ensuring the rule of law.

Appointing Jack Smith as special counsel was key. Not only does Smith’s appointment ensure a level of distance between Garland and the investigations, it also, according to Garland ^[7], “underscores the department’s commitment to both independence and accountability”. Smith is politically unaffiliated and has an impeccable background in the law, including as a former war crimes prosecutor at The Hague.

Biden, too, is maintaining distance as best he can. He wasn’t in Washington when the indictment went public. He told reporters in North Carolina ^[8] that he had not, and would not, speak to Garland about the case.

The Biden administration and Department of Justice see that distance as a critical part of the task of keeping American democracy functioning.

Special counsel Jack Smith is a a veteran prosecutor in the Justice Department. Jose Luis Magana/AP

Reacting with resentment and fury

Biden’s political strategy is important, too – he wants to win an election, after all. Part of his own campaign messaging is that he is serious about the survival of the republic, and about protecting Americans from what he has called the “semi-fascists ^[9]” in the Republican Party who are leading the charge against him.

Biden is all too aware, however, this is about a lot more than a game of political strategy. When, as Biden observed not so long ago ^[10], “too much of what’s happening in our country today is not normal”, prosecuting a political strategy along these lines is incredibly difficult.

Trump protesters and supporters gathered outside Trump National Doral Resort in Florida ahead of the former president’s arrival. Gerald Herbert/AP

Republicans’ own strategy in the face of these latest charges against their presumptive leader should surprise no one. The rhetoric ^[11] of the dominant, Trump-supporting faction of the party is designed to reinforce a longstanding politics of resentment and fury, which they are aiming squarely at Biden.

Republican Speaker Kevin McCarthy, for example, incorrectly claimed that Biden himself had indicted “the leading candidate opposing him”, presumably in an effort to defeat him. Senator J.D. Vance similarly claimed Biden is “using the justice system to pre-emptively steal the 2024 election”. Senator Josh Hawley – who famously raised his fist in salute of insurrectionists during the January 6 riots – mooted the end of the American republic on Twitter.

To these Republicans, the clear distance between Biden, the Department of Justice and the attorney general – and the attorney general and special counsel leading the investigations – doesn’t matter. Nor does the substantial evidence against Trump.

Going beyond the more coded language of some of their more senior colleagues, some Trump-supporting representatives have opted for naked incitement ^[12]. In Arizona, for example, one Republican congressman said ^[13] “we have now reached a war phase”. In Louisiana, a colleague described ^[14] the indictment as “a perimeter probe from the oppressors”.

These Trump supporters know exactly what they are doing. They are actively testing the strength of American democracy, probing for weak points. They support, after all, a man who has called ^[16] for nothing less than the “termination” of the Constitution. The difference between that and Hawley’s fear-mongering over the end of the US republic is only who gets to be in charge.

As he attempts in his re-election campaign to appeal to Americans who do not subscribe to Trump’s dangerous and distorted view of the world, Biden must prosecute a message of political integrity and the importance of the rule of law, while at the same time resisting continued assaults against them.

Whether Biden is up to these dual tasks remains to be seen. But the continued survival of the institutions of American democracy requires that he is.