At Trump Tower on August 9, a day after the FBI raided Mar-a-Lago.
Photo: David ‘Dee’ Delgado/REUTERS
For more than five years, the legal campaign against Donald Trump has followed a boom-and-bust cycle. First, some shocking information is reported or a significant development occurs in the various investigations of Trump. Second, national media outlets, assisted by the anti-Trump legal commentariat, explain how Trump might be criminally prosecuted. Then in the end, for some reason or another, Trump remains a free man, the threat he poses to the Republic more potent than ever.
Depending on your disposition, the news on August 8 that the Justice Department had searched Trump’s home at Mar-a-Lago — as part of a criminal investigation into the unlawful retention and destruction of sensitive government documents — means either that we are at the start of another of these cycles or that we may finally break free of them. According to the Justice Department, the inquiry “is in its early stages,” but many observers began speculating almost immediately about the likelihood of charges being filed against Trump with one former prosecutor quickly concluding that a potential DOJ case against the former president “looks quite strong” and another arguing that “a documents charge, as presidential accusations go, would be relatively easy to prove.” A similar flurry of suppositions followed the August 26 release of the affidavit supporting the search warrant, even though the document didn’t provide much new insight.
We have been here before. And while we cannot know the outcome of this specific case in advance, we do know what comes next. Liberals are already inflamed by the developments with a recent NBC News poll showing that “threats to democracy” have become a top issue for voters ahead of the midterms. Politicians like the Trump impeachment lawyer Dan Goldman, who won a crowded Democratic primary on August 23 for New York’s Tenth Congressional District, will reap the benefit. Meanwhile, conservatives will be inclined to write off the investigation as yet another witch hunt. The rule of law hangs in the balance between these ever-widening poles, a potential source of disappointment for one side, an expression of deep-state corruption for the other, revealing the shortcomings of a system that is still trying to adapt to the shock of Trump — and maybe never will.
Americans went through many rounds of Trump against the legal system, largely in connection with Robert Mueller’s investigation into whether Trump’s 2016 presidential campaign conspired with Russia. After the jaw-dropping disclosure of Donald Trump Jr.’s infamous email about getting dirt on then-candidate Hillary Clinton from a Kremlin-linked Russian lawyer, the media reacted with questions about possible treason and potential criminal liability for Trump himself. He was deemed at serious legal risk after the guilty pleas of associates George Papadopoulos, Michael Flynn, and Michael Cohen; after he fired FBI director James Comey; after he reportedly considered firing Mueller; after the convictions of his former campaign manager Paul Manafort and the indictment of his longtime confidant Roger Stone; after the release of the Mueller Report; and after his effort in mid-2019 to strong-arm Ukrainian president Volodymyr Zelenskyy into opening an investigation into Joe Biden’s family by withholding aid to the country.
In the wake of the anticlimactic Mueller investigation in 2019, many people transferred their hopes to the Manhattan district attorney’s probe into the finances of Trump and his business, with some observers confidently predicting that Allen Weisselberg, chief financial officer of the Trump Organization, would turn on Trump. When the office indicted Weisselberg and the Trump Organization last summer for failing to pay taxes, some maintained the investigation might still ensnare Trump, but those hopes were largely dashed when Alvin Bragg took over as DA at the start of the year, reviewed the case, and opted not to charge him. Ten days after the Mar-a-Lago search, Weisselberg pleaded guilty to the charges against him but indicated that he would not implicate Trump personally in any wrongdoing — yet another bad sign for the investigation.
No single theory of failure explains what happened in all of these cases, which constitute but a fraction of the legal jeopardy Trump faces. Even seemingly black-and-white cases can turn a shade of gray once lawyers are involved. So we have to do our best to hold two competing thoughts in mind as the investigation of Trump’s documents continues. The first is that the past is a legitimate guide to the future — that the Mar-a-Lago investigation, like others before it, may not result in charges against Trump. The second is that we can never really predict the future — that this time may actually be different, not least because the former president really has displayed a clear disdain for norms, ethics, and laws in so many situations that it’s difficult to keep count.
Meanwhile, the fallout from the Mar-a-Lago search has prompted a familiar response from conservative and centrist commentators, who have argued that a federal prosecution of Trump would be deeply damaging to the country because of the chaos and division that would result. Versions of this argument have been kicking around for years. Shortly after the 2020 election, for instance, the New York Times published an op-ed by a law professor who argued that a prosecution of Trump would “run the risk of turning” him “into one of the last things we want him to be: a martyr.”
Not long after the Mar-a-Lago search, the Times ran two columns that offered variations on this thesis — one from the self-described liberal centrist Damon Linker, the other from National Review editor Rich Lowry — with similarly hazy reasoning. Linker argued that a Trump prosecution “would be corrosive, in effect convincing most Republican voters that appeals to the rule of law are invariably a sham.” Lowry argued that Trump supporters are justifiably wary of criminal investigations that “are being handled by partisan Democrats at the federal or local level who have every incentive to nail him to the wall.”
The problem with these arguments is not that the underlying concerns are frivolous but that they bemoan overly enthusiastic liberals while giving the conservative response a pass. Dedicated Trump supporters may form a substantial minority of the American public, but they are not entitled to a veto over the mechanisms of legitimate legal accountability. That is true no matter how violent they may become.
The fact that the reaction of Trump supporters can be confidently predicted is more telling than Linker and Lowry seem to realize. The principal reason for this is not a hyperventilating liberal media but the fact that Trump’s supporters have been indulged for years by conservative politicians and an elaborate right-wing media apparatus that have constructed a sense of collective persecution. No matter what Trump says or does, no matter how significant the possible legal transgressions, and no matter how much we know about what Trump might have done, conservatives will not be convinced. In other words, it is not Merrick Garland’s Justice Department that is eroding trust in democratic institutions but Rupert Murdoch’s Fox News and the larger conservative infotainment complex.
Rightly understood, the rule of law is just as much about the orderly process of legal accountability under conditions of uncertainty as it is about the outcome. It is about what merits the serious scrutiny of our legal system even when the facts are unclear, even when the subject was once the most powerful person in the country, and even when the principals involved, including Garland and those advising him at the Justice Department, are imperfect. We are learning in real time how the rule of law in this country responds to an unprecedented phenomenon like Trump, who very well may outrun all these investigations as he prepares to launch a presidential campaign. These efforts may be too little, too late, but we’ll never know for sure until we try them.