The Don’s Boat Is Leaking

The news broke in the evening of June 8, 2023: Donald Trump would be the only former President of the United States to be indicted on federal charges. Of course, he alleged a partisan witch-hunt, but only his die-hard supporters believed that. The charges were related to the classified documents found in his possession, and his attempts to hide them from the FBI. We can be sure that the Special Prosecutor, Jack Smith, would not have brought these charges forward if he were not confident that he had the evidence for a conviction.

Trump will, of course, plead “Not Guilty” at his arraignment on Tuesday. His lawyers will no doubt try to get the case thrown out for lack of evidence, or for bias against the defendant, but don’t expect any such motions to succeed. He might get lucky and be assigned a judge he himself appointed, but Trump-appointed judges have not been particularly friendly to him in recent cases.

He is in deep trouble, and likely future indictments in Atlanta (for his well-documented attempt to overturn the Georgia election results) and Washington (for his efforts to block the peaceful transfer of power after the election loss that he denied) will add to his difficulties.

Unfortunately, because of predictable legal wrangling, none of these cases is likely to come to trial before the 2024 election. So voters will have to make their decisions without the closure that a conviction or acquittal would provide. This is unfortunate, but it would be wrong to argue that he should not have been charged because the indictments would overshadow the campaign. That would amount to giving Trump special consideration because he is a political candidate. If there is “probable cause” to think that he committed crimes, it shouldn’t matter who he is: he should be indicted.

There is, by the way, no prohibition on an indicted, or even convicted felon serving as President, or holding any other federal office. The Framers no doubt thought such a scenario so improbable that they didn’t need to provide for it. The only exception is found in the Fourteenth Amendment, Section 3 of which provides:

No person shall…hold any office…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.

The prospective indictment for his actions on January 6 of 2021, or even his 2020 call to the Georgia Secretary of State, urging that he “find” enough votes for Trump to win the state, would disqualify him from serving, if convicted. But we could well have him on trial through the election, or even through Inauguration Day. If he were elected and subsequently convicted, it would be up to the Supreme Court (yes, this Supreme Court) to make a final ruling on whether he could be permitted to serve. And if the trial continues past Inauguration, the Supreme Court would have to decide whether to permit the trial of a now sitting President to continue.

All evidence so far suggests that the indictments will actually strengthen Trump within the Republican Party. Most Republicans have shown themselves willing to follow Trump to the inner circles of Hell; they will surely buy his bogus claim of a partisan witch-hunt.

But Republicans are at most one third of the electorate. Democrats are about a third, too, or a bit more, and will almost all vote against Trump. The middle third of the electorate, the independents, will hold the key, particularly in the suburbs of swing states like Pennsylvania, and polling provides good evidence that the indictments will turn independents away. Trump was already looking like a loser because he appeals only to his base, without trying to attract swing voters. Indictments may increase his chances of winning the GOP nomination, but will further reduce his chances of winning in November.

The Republican professionals no doubt see this, but the base will be unmoved. The boats on the River Styx are loading.