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Few things are more perilous for democracy than an effort to obstruct the peaceful transfer of power after a legitimate election. This is what Donald Trump is now formally accused of. Bringing the previous, lesser, charges against him — of falsifying business records and mishandling classified documents — was right and necessary to show that even a former president is not above the law. But this week’s indictment is by far the most grave, since it goes to the very heart of America’s system of government. Bringing these charges entails huge risks. The risks of not doing so would have been greater.
The 45-page indictment alleges that Trump, with six unnamed co-conspirators, was involved in a scheme to make false claims that the 2020 election was rigged, then used those claims to attempt to overturn the outcome. A trio of conspiracies each targeted a “bedrock function” of the US government — the process of “collecting, counting and certifying the results” of the presidential election.
It does not accuse the ex-president of inciting the January 6 2021 assault on the Capitol by his supporters. But it says Trump’s lies aimed to create an “intense national atmosphere of mistrust and anger” and erode faith in how the electoral process was run. These were the conditions in which such an attack could take place.
There are multiple hazards in mounting this case. The bar at trial is high. The indictment concedes Trump had a First Amendment right to criticise and voice falsehoods about the election. Prosecutors must prove he knew his statements were false, and used them as part of a criminal fraud.
The charges, moreover, may only boost Trump’s support and fundraising capacity. They threaten to stoke the belief among his loyalist base that the ex-president is himself the victim of a plot to bar him from a political return. Since a sizeable minority is convinced by Trump’s “Big Lie”, the charges risk setting Americans against Americans, and even provoking violence.
Senior Republicans ought to think twice about further inflaming tensions by continuing to accuse Democrats and the White House of “weaponising” the justice system. Though Trump has not been found guilty by a court, they should realise that endorsing a man who is not only seen by many citizens as having attempted to subvert an election but is now charged with doing so could do long-term damage to their party brand. It is important, at the same time, that US legal authorities are seen to be entirely impartial in handling the process that is rightly under way against Joe Biden’s son Hunter Biden, though on much lesser charges than those levelled at Trump — which Republicans have claimed is a cover-up.
Not to bring the latest charges against Trump for fear of the consequences would have set a precedent that presidents can get away with trying to undermine the electoral process. It would have suggested that the judiciary may not be able, or may simply choose not, to hold the executive arm to account. This would, in the end, have been worse for the US political system.
In an ideal world, this newest indictment would be prioritised, given its gravity, over the previous two — and would be guaranteed to come to trial before next year’s election. In reality, Trump’s team may succeed in delaying it beyond the poll, opening the possibility that, if he won, the returning president could appoint a more amenable attorney-general to bury the case — or even pardon himself. What is clear is that the next year, even more than the 2020 election, will herald a battle for the future of US democracy — one in which not just the political system but the legal system will now be involved.
