If former president Donald Trump is indicted in the coming days or weeks, as Trump himself has suggested he will be, American democracy will face a new kind of pressure as its judicial institutions mobilize for the first time to consider the guilt or innocence of one of its most powerful citizens.
But experts in democracy say the real test will come not with the prosecution itself, but with the response from Trump and the rest of the Republican Party.
Any effort by Trump and his allies to undermine such a proceeding will erode public faith in the judiciary, they said, creating new risks for democracy just two years after Trump attempted to foment an insurrection and overturn an election.
And, they warn, that already appears to be happening.
“In and of itself, bringing a former leader to justice, assuming that it’s done in a procedurally correct way, is not a threat to democracy,” said Steven Levitsky, a professor of government at Harvard who is the coauthor of “How Democracies Die.” “What’s a threat to democracy is when leaders who have a lot of influence incite violence or actively use their influence to undermine the legitimacy of our institutions.
“The really crucial issue going forward,” he added, “is what the Republican Party does.”
While several investigations into different aspects of Trump’s conduct are underway, it is not certain that any of them will result in indictments against him. Still, Trump, his allies, and even some of his Republican rivals are mobilizing to depict any future charges as a politicized witch hunt.
Trump warned over the weekend on his social media site, TruthSocial, that he could be arrested as early as Tuesday and called for protests, though even his most ardent loyalists, like Speaker Kevin McCarthy, have publicly spoken out against that approach.
However, Trump’s other allies in the House GOP are taking the unusual step of demanding documents and testimony from Manhattan District Attorney Alvin Bragg, the prosecutor in the New York case that is reportedly close to completion. That case explores whether Trump paid hush money to a porn star so she would not speak publicly about her allegations of an affair with him in the closing days of the 2016 presidential campaign, an allegation he has long denied.
“One of the reasons we’ve won races in New York is based upon this DA — of not protecting the citizens of New York,” said McCarthy on Monday at a retreat for his conference in Orlando. “And now he’s spending his time on this?”
Florida Governor Ron DeSantis, who appears likely to jump into the 2024 Republican presidential primary and compete against Trump, took a barely veiled shot at the tawdry nature of the allegations against Trump — but still condemned the as-yet nonexistent charges as cooked up.
“He, like other Soros-funded prosecutors, they weaponize their office to impose a political agenda on society at the expense of the rule of law and public safety,” DeSantis said, making a reference to George Soros, a deep-pocketed Democratic political donor and perennial GOP boogeyman.
The response underscores the depth of Trump’s continued influence over his party and the power of the former president’s base over those who might want to beat him in the voting booth. And experts who have studied democracy in other countries see the broad willingness to denigrate democratic institutions that could threaten him as a flashing red warning sign.
“Even today, Republican leaders are unwilling to isolate Trump, unwilling to denounce Trump for his criminal and anti-Democratic behavior,” Levitsky said. “It’s gonna be really really costly — to them, to probably the Republican Party, and probably to our democracy.”
Trump’s presidency and its aftermath have worried democracy experts. Trump derided the free press; frequently warned about the “deep state” of civil servants, a crucial corps in the government; and sought to depict basic fixtures of American elections, including absentee voting, as part of a plot to rig elections against him. Then he sought to overturn the 2020 election and encouraged an armed mob to march toward the Capitol, where it attempted an insurrection on Jan. 6, 2021.
Rachel Kleinfeld, a senior fellow in the Democracy, Conflict and Governance program at the Carnegie Endowment for International Peace, said it is not surprising that those concerns have outlived his presidency.
“Most countries that have elected a populist don’t get out of it quickly,” Kleinfeld said. “Those candidates inflame the countries while weakening the institutions, which is unfortunately where I expect America to go.”
Some of Trump’s allies have suggested that prosecuting him is too risky for the institutions that make up American democracy. Senator Eric Schmitt, a Republican from Missouri, called it a “very, very dangerous road to go down.”
“It’s antithetical to America’s founding which rejected the idea and practice of those in power punishing political opponents for vague and ambiguous ‘crimes against the state,’” Schmitt said on Twitter.
But people who study democracy argue that not prosecuting a former president because doing so would be contentious raises democratic risks of its own, because it could suggest that certain citizens are, in fact, above the law.
“There’s no doubt that in our political climate, whatever actions are taken by government agents or officials, they will hit enormous amounts of blowback, backlash, criticism. That’s the nature of our politics now,” said Gerald J. Postema, a professor emeritus of philosophy at the University of North Carolina at Chapel Hill who recently wrote a book about the rule of law. “That fact alone doesn’t give us reason to moderate our pursuit of matters, legal matters, and prosecutions when there is a strong case.”
And while the indictment of a former president in this country would be an unprecedented, scholars of comparative politics point out that people who have been presidents or prime ministers have been indicted and jailed in numerous other democracies.
The current president of Brazil, Luiz Inácio Lula da Silva, was convicted and jailed between his first and second presidencies, in a case that was eventually annulled. Boris Johnson, the former prime minister of Great Britain, was investigated and ultimately fined for breaking lockdown rules. The current prime minister of Israel, Benjamin Netanyahu, won reelection last fall while facing a corruption indictment.
Kleinfeld has studied populist authoritarian leaders in depth, including in Italy, where populist leader Silvio Berlusconi faced various charges, and in Colombia, where former president Alvaro Uribe faced a host of investigations after leaving office. Both men continued to shape their country’s politics, she wrote, and damaged their country’s perceptions of the institutions that investigated them.
“In every single case, the populist tried to demean and discredit the judiciary, and in every case ... it always was damaged,” Kleinfeld said. “The side that’s trying to uphold the rule of law will always look partisan, there’s no way to get around that reality.”