The People v. Donald Trump

After years of watching U.S. President Donald Trump flout democratic norms and the rule of law, it is easy to feel a sense of vindication from his indictment in early April by Manhattan District Attorney Alvin Bragg for falsifying business records. Few objective observers doubt that the facts support this indictment or one of the many other potential indictments confronting Trump today—including those for mishandling classified documents, pressuring election officials in Georgia, and inciting the January 6 attack on the Capitol.

But the first criminal prosecution of a former president and current presidential candidate creates a dilemma for American democracy. On the one hand, in the United States’ highly polarized environment, Trump’s prosecution generates real risks of political violence and the weaponization of the U.S. legal system. At the same time, there is an even greater risk that a failure by prosecutors, judges, and juries to hold Trump accountable in the face of Republican threats will encourage even bolder right-wing attacks on democracy and public order.

The Hazards Ahead

The most obvious danger in indicting a major contender for office, and one that has been evoked by many on the right today, is that criminal charges can be weaponized to suppress political opposition. A wide range of authoritarian regimes have jailed political rivals in recent decades—including in Albania and Malaysia in the 1990s, Ukraine in the early 2010s, and Belarus and Russia today. Mark Green, a Republican U.S. representative from Tennessee, has made the comparison to such regimes explicit. “Daniel Ortega arrested his opposition in Nicaragua, and we call that a horrible thing,” he said. “Mr. President, think about that.”

The U.S. legal system is certainly not immune to politicization. Indeed, the extraordinary lengths to which Democratic district attorneys in Manhattan, first Cyrus Vance and then Bragg, have gone to find some kind of case against a leader of the opposing party—and the fact that Bragg is charging Trump with a crime rarely pursued by prosecutors—generates valid concerns that the indictment of Trump has been driven at least partly by partisanship.  

Yet opportunities for the politicization of the U.S. legal process remain far narrower than in countries such as Nicaragua and Russia, where political opponents can be arbitrarily detained for months without due process. There are clear limits on the capacity of U.S. officials to target political opponents. Even if Bragg’s indictment of Trump was politically motivated, the district attorney still had to convince a majority of randomly selected members of a grand jury that there was enough evidence to accuse Trump of a crime. Trump also cannot be held arbitrarily, and his conviction is far from guaranteed.

Republicans already have a track record of politicized criminal prosecutions.

These same constraints are the reason that Trump’s own efforts to prosecute his adversaries never went anywhere. Trump failed in his attempts to drum up legal cases against former FBI Director James Comey and his 2016 election opponent, former Secretary of State Hillary Clinton. The federal prosecutor Geoffrey Berman also successfully resisted efforts by Trump’s Justice Department to pressure him to prosecute former Secretary of State John Kerry. The American judicial system remains robust, and the threat of political abuse is far too limited to warrant abandoning efforts to hold Trump legally accountable.

Critics of the indictment have also made the case that it will unleash a wave of Republican prosecutions of Democrats. This ignores the fact, however, that Republicans already have a track record of politicized criminal prosecutions, going back to the extensive and partisan investigations of President Bill Clinton and his family in the 1990s and extending to Trump’s more blatant efforts to target his political rivals. It is not clear that prosecuting Trump will make Republicans more motivated than they already are to politicize the judicial system.

In fact, criminal actions against current or former top elected officials have taken place in many democracies without undermining their political systems. The countries that have pursued these prosecutions include Argentina (Presidents Carlos Menem and Cristina Kirchner), Croatia (Prime Minister Ivo Sanader), Ecuador (President Jamil Mahuad), France (Presidents Jacques Chirac and Nicolas Sarkozy), Israel (Prime Minister Ehud Olmert), Italy (Prime Minister Silvio Berlusconi), Portugal (Prime Minister José Sócrates), Romania (Prime Minister Adrian Nastase), South Africa (President Jacob Zuma), South Korea (Presidents Roh Tae-woo and Park Geun-hye), and Taiwan (President Chen Shui-bian). Rather than threatening democracy, many of these legal actions arguably strengthened democratic institutions by demonstrating that no one is above the law.

America’s Combustible Politics

At the same time, the polarization of American politics makes the prosecution of a former leader potentially more hazardous than it would be in many other countries. First, politically motivated legal action is more likely in bitter, highly contested political contexts. In Brazil, for example, Sergio Moro, a federal judge, collaborated directly with prosecutors in bringing charges against former President Luiz Inácio Lula da Silva and then went on to serve as the minister of justice under Lula’s rival, President Jair Bolsonaro.

An extreme reaction by supporters of leaders facing prosecution is also more likely in a polarized environment. In the United States, legal action against Trump has targeted a presidential contender whose supporters are well armed and have long viewed political battles in existential terms. The Republican Party today faces a threat to its electoral viability caused by a decrease in the number of rural, white Christians who form the party’s electoral base and define its identity. The share of white evangelicals has declined from 23 percent of the American population in 2006 to 14 percent in 2020. Partly because of these trends, Republicans have lost the popular vote in seven of the last eight presidential contests.

At the same time, the United States’ growing diversity has radicalized a significant proportion of Republicans, who fear that white Americans are losing their status in society to nonwhites. Michael Anton, a conservative essayist who later served on the National Security Council under Trump, crystallized this perspective during the 2016 election, when he drew a parallel between supporters of Trump trying to reclaim their political system and passengers on the doomed United Airlines Flight 93, which was hijacked by terrorists as part of the 9/11 attacks. “Charge the cockpit or you die,” he wrote. “You may die anyway.”

For Anton and a large share of Trump supporters, the foundation of American life is existentially threatened by the “ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty” that will destroy Western civilization and lead to the “permanent victory” of a left intent on crushing the right. In line with this view, many Republicans—who are about twice as likely as Democrats to own a gun—believe that violence may be necessary to halt the decline in the traditional American way of life.

The threat of violence is real.

As the political scientist Rachel Kleinfeld has noted, violent rhetoric and white supremacist ideas, which used to be the purview of fringe groups, have made their way into the Republican mainstream. Fox News, for instance, has hosted widespread discussions of the great replacement theory, which holds that increased diversity in the United States is the product of a conspiracy to “replace” native-born white Americans with immigrants. The Republican Party elite has engaged in frequent violent rhetoric—some conservative leaders even celebrated the attack in late 2022 on the husband of House Speaker Nancy Pelosi. In a clear effort to rally the far right, Trump also gave a speech in Waco, Texas, on the anniversary of the FBI attack on an armed religious cult’s compound, an attack that has fueled the growth of right-wing militias.

Given these trends, it should come as no surprise that political violence has spiked sharply in recent years. Threats against members of Congress, for example, have risen tenfold in the last five years. Such trends have been driven mainly by right-wing extremists. According to data compiled by the Center for Strategic and International Studies, the overwhelming proportion of recent acts of domestic terrorism—including attacks on mosques, synagogues, and Black churches—have been carried out by far-right groups. Nearly all politically motivated murders in the last decade have also been committed by members of the far right.

Against this backdrop, Republican leaders have been nearly unanimous in portraying the indictment of Trump in extreme terms. House Speaker Kevin McCarthy described it as an “unprecedented abuse of power,” and two other prominent House Republicans called it a “political witch hunt” and a “clear and brazen political persecution.” Trump’s main rival for the Republican presidential nomination blasted it as “un-American,” and a prominent conservative pundit likened it to “Stalin’s purges.” Others in the party share these views: a large majority of Republican voters see the indictment as politically motivated.

So far, fortunately, there have been few signs of violence in response to the indictment. But given the high degree of polarization and violent rhetoric, it does not take much imagination to sketch out a scenario in which the legal threats to Trump cause supporters of the former president to resort to violence. The risks of these attacks may escalate if Trump appears to be faced with imminent conviction and jail time. Actions might include attacks on the courts, increased harassment or even the assassination of prosecutors or politicians supporting legal action, or assaults on potential witnesses preparing to testify against Trump.

Standing Strong Against Violent Extortion

The threat of violence is real. But so is the danger of encouraging extortion by giving in to threats of violence. If Trump and his supporters perceive that he can avoid legal accountability by threatening unrest, they will do so again and again.

The specter of mob violence has long threatened democracy. As the political scientist Rob Mickey has shown, political violence and disorder in the American South at the end of the nineteenth century convinced the federal government to abandon Reconstruction and permit the emergence of single-party rule rooted in segregation. More recently, informal groups of armed supporters have been used to suppress opposition movements around the globe—including “ethnic warriors” in Kenya, organized war veterans in Armenia and Zimbabwe, miners in Romania, chiméres in Haiti, “divine mobs” in Nicaragua, and “kick-down-the-door gangs” in Guyana.

Although examples of political violence in the United States are not nearly as extreme as these cases, violent extortion has become an increasingly common Republican tactic. Threats of violence dissuaded two Republican House members who supported Trump’s impeachment, Anthony Gonzalez and Adam Kinzinger, from running for reelection. After Gonzalez withdrew from his race, Trump released a statement saying, “1 down, 9 to go!” When Georgia’s secretary of state, Brad Raffensperger, resisted Trump’s efforts to manufacture a victory in his state, the president referred to him as the “enemy of the people”—sparking an attack on Raffensperger’s office by armed protesters and a wave of death threats that forced his family into hiding.

These threats are even more salient for lower-level bureaucrats who have fewer security protections and less to gain by participating in the democratic system. Election workers, for instance, have been hit hard by violence: according to a survey by the Brennan Center, one in six election workers has experienced harassment or even death threats. Nearly a third of poll workers report that they know of someone who has resigned or taken a reduced workload because of such threats. These departures create room for highly partisan officials to fill the vacant positions, fundamentally threatening electoral integrity.

The failure to prosecute Trump would create a vicious cycle.

In fact, Trump and his supporters have explicitly tried to use the threat of violence to dissuade prosecution. Trump warned in late March that if charges were brought, “potential death & destruction . . . could be catastrophic for our Country.” The right-wing media has echoed this message: the Fox News host Jesse Watters cautioned that the “country’s not going to stand for it . . . people better be careful,” and Tucker Carlson, another Fox host, said that now is “probably not the best time to give up your AR-15s.” Placed in the context of intense polarization and rising right-wing violence, such threats create a real danger that Trump and his supporters will be able to discourage prosecutors, judges, or jurors from holding officials accountable for democratic or other abuses.

The stakes of Bragg’s prosecution, as well as the other potential indictments Trump faces today, go far beyond whether he will be held accountable for particular alleged crimes. Although the rule of law is crucial for democratic stability, one more wealthy white businessperson getting away with a white-collar crime is unlikely to break the republic. But if Trump and his supporters perceive that their threats of violence are effective, they are likely to engage in more violent behavior. In this way, the failure to prosecute Trump would create a vicious cycle that does tremendous harm to the democratic process.

The prosecution of Trump thus presents a significant test of American democracy. Although the indictment is almost certainly justified, legal action against a major candidate for office in a context of growing polarization and right-wing support for violence cannot be taken lightly. Acquiescing to violent extortion from a former president and his supporters, however, is no solution at all. As a result, there is really no viable alternative to holding Trump accountable for his actions.