This nation is about to undergo a great test of whether we, as Americans, truly respect a concept we claim to revere: the rule of law.
In the case of Donald Trump — who was indicted Thursday on 37 federal criminal counts, including willfully retaining classified documents, conspiring to obstruct justice, and withholding or concealing records or documents — that means the former president shouldn’t escape the consequences for actions others would be prosecuted for simply because he has held the highest office in the land.
But it also means that Trump shouldn’t face prosecution for conduct that wouldn’t result in criminal charges if done by someone other than a former president, or more specifically, by this former president.
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Trump’s indictment has already touched off a political tug-of-war over what should be complementary rule-of-law concepts. Trump himself has called this prosecution a “hoax,” a label that, like “fake news” and “witch hunt,” he presses into service as his multipurpose defense for virtually any adverse action or significant criticism. The indictment is all part of an effort to torpedo his comeback campaign for the presidency, he claimed in a video released on Thursday.
Ideally, a matter as momentous as the indictment of a former president would call for a prudent wait-and-see posture on the part of the political class.
It won’t, of course. The irony here is that Republicans, members of the party that usually pays the most lip service to the rule of law, are least inclined to demonstrate forbearance when one of their own faces prosecution.
House Speaker Kevin McCarthy, the GOP’s most prominent national figure, has already engaged in a piece of preemptive positioning, tweeting that “I and every American who believes in the rule of law, stand with President Trump against this grave injustice.” (Speak of projection!) “House Republicans will hold this brazen weaponization of power accountable,” he vowed.
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Those comments, like Trump’s own claim, will find a receptive audience with the MAGA faithful, who have been conditioned by Trump to believe that there is an implacable deep state in the US government, one whose shadowy figures are forever out to get him.
The problem for those who hew to that point of view is that it has never borne out.
Its adherents had hoped that vindication would come from special counsel John Durham’s exhaustive probe of the FBI’s investigation into possible connections between Trump’s 2016 campaign and Russia. Trump claimed at one point that Durham’s delving was exposing “the crime of the century.” Alas for Trump and his true believers, however, Durham’s effort fell flat when juries declined to convict in the only two criminal cases he brought.
Despite the belief among Trump’s backers that he faces perpetual political persecution, the fact of the matter is that his legal troubles are largely self-caused. Trump has always behaved as though the rules that apply to others simply don’t apply to him.
To see that, one need only hear the recording CNN has obtained of the former president discussing his possession of what is apparently a Defense Department document, one that he admits is “like, highly confidential. Secret.” On that recording, Trump also acknowledges that the information he is apparently rifling through to emphasize a point to the others in the room hasn’t been declassified.
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“As president, I could have declassified, but now I can’t,” he says.
It understates the matter to note that this recording appears to undermine Trump’s previous claims in the matter of the missing documents. Pity the poor Trump attorney tasked with explaining that away to a jury.
In our legal system, the real proof or refutation of prosecutorial allegations comes at trial.
This case and all its related questions will ricochet through the federal court system. Crucial aspects of it will in all likelihood reach the US Supreme Court, which is currently controlled by a 6-3 conservative majority that includes three Trump appointees.
That means the former president will have an open-minded and, arguably, a sympathetic audience at the highest level of federal judiciary. If this case is ill-founded, unreasonable, or marked by prosecutorial misconduct, the high court will surely say so.
As all this goes forward, Trump, like any other defendant, is entitled to the presumption of innocence. He won’t receive that from a large segment of the center-left electorate, who have long salivated for his indictment.
But he will in court. And that’s where everyday Americans should put their faith.
After all, notwithstanding our high court of conservative judicial activists, if there’s one aspect of American governance that has proved its dispassionate overall mettle in the hyperpartisan heat of the last few years, it’s been our judicial system.
Scot Lehigh is a Globe columnist. He can be reached at scot.lehigh@globe.com. Follow him @GlobeScotLehigh.
