The indictment of a former president of the United States is unprecedented. But Donald Trump is unprecedented. There is much to be worried about in setting a precedent for the criminal prosecution of a former president. But it would be much worse to conclude that anyone, including the president, is above the law.
The indictment by a New York grand jury follows many years of investigation. In fact, the matter went to the US Supreme Court in 2020, which emphatically ruled that a president has no immunity from a state grand jury investigation.
The indictment accuses Trump of violating New York state laws in connection with a 2016 hush money payment to porn star Stormy Daniels in exchange for her staying silent about her affair with Trump. Former Trump attorney Michael Cohen has stated that he paid Daniels $130,000 at Trump’s direction. Cohen has said that he was reimbursed the money during Trump’s first year in office, with Trump signing checks in between official government business.
The indictment accuses Trump of overseeing the false recording of the reimbursements in his company’s internal records. The records falsely stated that the payments to Cohen were for “legal expenses.” The indictment alleges that this also violated New York’s campaign finance laws.
That means that the grand jury concluded that there is sufficient evidence that Trump committed a crime and should stand trial for it. Of course, he could choose to plead guilty instead. But otherwise, he will be tried and a jury will decide whether he broke the law.
No former president has ever been indicted. There is reason for concern that this opens the door and will inspire Republicans to look for a way to indict President Biden and future Democratic presidents after they leave office. Other countries have seen exactly this pattern, where new officeholders criminally prosecute their predecessors.
Already, Republican leaders have decried this indictment as political. House majority leader Kevin McCarthy sent a tweet describing this as “an outrageous abuse of power by a radical DA who lets violent criminals walk as he pursues political vengeance against President Trump.” Representative Elise Stefanik of New York said that Democrats have reached “a dangerous new low. Knowing they cannot beat President Trump at the ballot box, the Radical Left will now follow the lead of Socialist dictators and reportedly arrest President Trump.”
But despite these attacks and the worry of what precedent this might set, New York District Attorney Alvin Bragg did exactly the right thing in pursuing the indictment of Trump. The core of the rule of law is that no person is above the law. If Trump committed a crime, he should be indicted and prosecuted for it. The alternative, which is far more frightening, is to say that once a person has been elected president there is a lifetime “get out of jail free” card that provides full immunity from all criminal charges.
There are only two relevant questions in evaluating the Trump indictment: Did the grand jury have sufficient reason to believe that Trump authorized the payment of $130,000 to Daniels in exchange for her remaining silent about their sexual relationship, as she and Cohen allege? And if so, is there sufficient reason to believe that this violates New York law, including in the fraudulent way it was recorded and not reported under campaign finance laws? If the answer to both questions is yes, and from all that is known it appears so, then the district attorney and the grand jury were completely justified in the indictment.
Some may feel that this is too minor a crime to warrant prosecution. Certainly compared to other Trump offenses, including inciting the insurrection on Jan. 6, 2021, and grossly mishandling classified documents, this seems less significant. But more trivial crimes than this are prosecuted every day without outrage. The first case I argued in the Supreme Court involved a man who was sentenced to 50 years to life for stealing $153 worth of videotapes.
I disagree with those who dismiss as minor Trump’s alleged crime in paying off Daniels and fraudulently concealing it. Trump was using his corporation’s wealth to keep the American people from learning unseemly information about him in the context of a close presidential election. His disregard of the law should be held accountable.
Indeed, what makes Trump different from other presidents is his disregard of the law in so many ways. He is under criminal investigation for other matters and may be indicted for them. Thus, indicting Trump is essential to send a message to all: No one, not even a former president, is above the law.
Erwin Chemerinsky is a professor of law and dean of the Berkeley School of Law at the University of California.