Faced with documents of this seriousness, and brazenness of this shamelessness, it’s easy to see why the Department of Justice would want to prosecute to deter anything like this in the future.
No doubt it carries unpredictable political consequences, but is it for prosecutors to consider them? Do we really want to see prosecutors decide whether or not to proceed by figuring out what they think politics demands?
Judge Aileen Cannon is seen in a still image from her video interview with members of the Senate Judiciary Committee in July 2020.Credit: Committee on the Judiciary
As a matter of abstract principle, I’d much prefer to see prosecutors pursue serious felonies on their own terms, for their own seriousness, and let the political chips fall where they may. I’d quite like them specifically not to think about politics.
Except the Department of Justice has an established custom of not investigating or charging candidates in the lead-up to an election. That might seem a subordination of the law to politics, but actually it’s something like the reverse: minimising the scope for politics to weaponise and corrupt legal processes.
The Department of Justice is under the control of the attorney-general: a political figure. Once you open the door to prosecuting candidates – especially front-running candidates from the opposing party – you open a door to very dark possibilities indeed.
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The conventional wisdom is surely that letting a candidate get away with some wrongdoing is a lesser evil than letting an incumbent administration use this power to manipulate (or eliminate) its opposition. Those insensitive to that risk might wish to consider how this power might look in the hands of the next Republican president, possibly even Trump himself after having had it used against him.
In fairness, Attorney-General Merrick Garland does seem sensitive to this. Three days after Trump announced his candidacy, Garland transferred the investigation – which had already commenced – to an independent special counsel. It’s about the most Garland could do without simply suspending the investigation, but that doesn’t mean it’s enough to render the whole investigation apolitical.
Certainly not in an environment so totally political as the current United States. And certainly not when the charges themselves are directly connected to Trump’s political status as a former president.
Perhaps it would be different if the charges were confined to his private life – say, something to do with tax fraud. But as things stand, Trump is exactly where he works best: at the centre of the political conversation, railing against the elites who run a corrupt system designed to bring him down because they didn’t like his presidency.
His opponents see the unprecedented nature of all this as evidence of the singular threat Trump poses to democratic life. His supporters see it as evidence of the lengths to which his persecutors will go to satisfy their obsessions. In the end, Trump is either exonerated or martyred. For his style of politics, either works.
The wiser path might have been not to pursue this until after the election. Sure, that leaves the possibility Trump wins that election and escapes all accountability for his actions. But this indictment might only have increased the chances of that victory, anyway.
At which point, President Trump could simply pardon himself for any conviction, and suffer no crisis of legitimacy among his ardent supporters, and perhaps even his more lukewarm ones. After all, they will have noted the indictment and already factored it into their vote.
What a hopeless paradox. So fused are politics and the law in American life now that neither can stand alone in its proper place.
The court becomes merely another theatre for politics, in which rulings gain their legitimacy from little more than the extent to which they give people the answers their politics demand. Which is to say, roughly half the country is apt to consider them illegitimate at any given moment.
But when everything is political, politics itself suffers irreparably because ultimately, politics needs things which sit outside it in order to flourish.
It needs institutions that can restrain it, resolve its deadlocks, escape its logic of winning at all costs, bind partisan foes. Can such things exist in America any more? Perhaps one day, we could ask Aileen Cannon.
Waleed Aly is a regular columnist.
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