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Throughout his political career, Donald Trump managed to evade the law. It seemed possible that he always would. He was impeached twice but acquitted both times, and since leaving office, his team has been remarkably successful in delaying and undercutting the criminal cases against him.
On Friday, that possibility was laid to rest 34 times over, thanks to a New York jury finding him guilty on felony charges stemming from the cover-up of his hush money payments to an adult film actress during his 2016 campaign. The 34 counts make Trump the first ex-president in US history to become a felon.
“I think it’s extraordinarily significant,” said Noah Bookbinder, president of the watchdog group Citizens for Responsibility and Ethics in Washington. “This is really the first instance of real accountability for Donald Trump.”
But even as the New York case brought Trump his first taste of criminal justice, it demonstrated weaknesses in the federal system. Neither of Trump’s federal trials — one for trying to overturn the 2020 election and another over his dangerous stewardship of classified documents at Mar-a-Lago — seem likely to return a verdict before the 2024 election. And Trump, who’s leading in the polls and has told associates that he’ll undermine the prosecutions against him if he retakes the Oval Office, has a clear route to escaping federal consequences. Even if the federal trials were to reach a verdict before the election, he has toyed with the idea of pardoning himself once elected.
There are good reasons to set a high bar for prosecuting officeholders. Indeed, specifically going after political opponents for crimes, real or imagined, is a key part of the authoritarian playbook.
But there are also risks for democracy when the justice system lacks the power to enforce the laws in the face of obviously criminal behavior. Trump’s story reflects a seemingly fragile federal system that — due to its dependence on norms and officials’ willingness to put the rule of law ahead of partisanship — is seriously struggling.
Why the New York conviction isn’t enough
Since the Manhattan district attorney indicted Trump last year, a lot of the commentary on the case has been that it’s a weaker and less serious case than the others against the former president.
And while it’s true that falsifying business records is less serious than trying to steal an election, the two are not entirely disconnected.
Trump’s hush money scandal — in which he paid Stormy Daniels to keep quiet about their affair and falsified business records to cover it up — was in many ways a window into his willingness to break the rules to get to the presidency and his philosophy on power: That it’s his to take and that elections shouldn’t be respected.
“It is of a piece in some ways with the later conduct in the sense that this was criminal wrongdoing and deceptive conduct meant to help him get into a position of power,” Bookbinder said.
But it’s not enough for only one state to enforce the law against Trump. “I don’t think that it really substitutes for the role of the federal government,” Bookbinder said. “And what we’ve seen over the last four years is … a lot of institutions acting as though it’s just easier and better to pretend this effort to overturn an election and incite an insurrection didn’t happen.”
States also shouldn’t be expected to take on the role of the federal government when there’s a vacuum of accountability, especially when the crimes in question are so egregious.
“When it comes to wrongdoing by a president, there’s a reason why states are not always best positioned to look into those,” Bookbinder said. States, for example, have very limited purview when it comes to a president’s behavior since they can only go after crimes committed in their jurisdiction. “They’re also not necessarily used to or equipped for things that happen in Washington at a federal level.”
The only jurisdiction that can truly protect the federal government from would-be autocrats is the federal government itself
That’s hardly a recipe for protecting the country as a whole from a president who is, say, willing to incite an insurrection in order to illegitimately hold onto power. After Trump so recklessly attacked the key democratic institutions of the federal government — including Congress and the Department of Justice — it’s critical that those institutions not only survive those blows but also hold accountable the person responsible. It’s a matter of setting precedent and sending a message to Trump’s successors about whether there are consequences to disobeying democracy. At the end of the day, the only jurisdiction that can truly protect the federal government from would-be autocrats is the federal government itself.
There are also some risks involved in over-relying on states to enforce democratic rules and norms in lieu of the federal government. While the New York case was important and had plenty of legal merit, it might have a dangerous unintended consequence, especially if it turns out to be the only successful prosecution of Trump. It sets a precedent for other states to go after former presidents and other federal officials, potentially resulting in more politically motivated investigations, particularly by prosecutors in hyperpolarized states that are insulated from any meaningful political opposition.
“This New York case was not at all … an overzealous prosecutor who wanted to bring a case at all costs,” Bookbinder said. “But certainly it can be used as an excuse for other, more politically minded, prosecutors who might abuse [their power].”
That doesn’t mean there aren’t checks and balances. “Ultimately there has to be some there there,” Bookbinder said. “I don’t think we’ve gotten to a place where states can bring totally frivolous, made-up political prosecutions and have them go somewhere.”
That said, prosecutors might still try at the very least to get those kinds of prosecutions started, which is why it’s especially important for the federal government to take on the task of delivering accountability to former presidents.
What happens if Trump wins?
The Department of Justice’s cases against Trump have been hamstrung by delays. That’s essentially been the Trump legal team’s strategy: to delay the trials just long enough so that the election can take place before they actually go anywhere.
Trump has gone back and forth on whether he’ll try pardoning himself, but the question of whether or not he has the legal authority to do that has never been tested in the courts. (More than that, a pardon wouldn’t rid him of his New York conviction since that was a state, not federal, case.)
But what Trump can do, if he is not convicted before he takes office, is to thwart the Justice Department’s cases against him. That would be yet another abuse of power and undeniably corrupt, but that’s not enough to stop him.
“We’ve got a fair amount of past conduct to guide us. Donald Trump very clearly … pushed for cases to be dropped,” Bookbinder said. “He seemed to have very little interest in there being a meaningful separation between the president and the Department of Justice. I think we just have every reason to believe that if he became president he would set out to kill those cases.”
Trump, after all, has attacked the cases against him as “witch hunts.” He has tried to intimidate the prosecutors involved, including by attacking their families. And he has vowed to retaliate against his political opponents should he win the presidency again.
That’s why it is so important for these cases to be resolved before the election: to insulate them from any potential political tampering.
“I think one of the things that we learned during the Trump presidency was that a lot of things we thought were laws were norms and traditions. But even when there were laws, they didn’t enforce themselves. You needed people and institutions who were willing to enforce them,” Bookbinder said.
So far, the federal government has failed that test. While there have been many attempts to hold Trump accountable at the federal level — Congress thoroughly investigated him, the US House impeached him twice, and the Justice Department has indicted him in two separate criminal cases — the federal government hasn’t yet proven that it can follow through on holding former presidents to account.
This isn’t necessarily unique to this moment. The Obama administration’s failure, for example, to hold its predecessors accountable for torture set a precedent that, so long as you reach a high enough level in government, you are afforded a degree of immunity even in some of the most serious violations of the law.
But the question has never been whether the system has the tools to hold former presidents accountable. It’s a question of whether the people in power want to ensure that the law isn’t just words on paper.
“I don’t think it’s that the federal government can’t police itself. I think it can,” Bookbinder said. “But a lot of it comes down to will.”
That’s ultimately what it boils down to between now and November. The federal government has one last chance to hold Trump accountable for his misconduct as president. If it fails to do so, then one thing is clear: The federal system is not capable of enforcing the law against presidents, and this one will have proven himself to be above the law.
