Reflection On An Indictment

Just a short post this week, but I hope you’ll find it thought-provoking. I’ve been busy planning, recording, editing, and publishing season 4 of my podcast, “Higher Callings.” I have the final full episode of the season ready to drop this week, though I intend to follow it up with a bonus episode next week and possibly a highlights episode at some point. The podcast takes a lot of time, and I have to juggle that with the time it takes to write this Substack, but now that I’m almost done with the podcast for a while I hope to have more time for writing.

It's been an interesting week in national politics, to say the least, and the coming days should prove the same. I’ve been a little surprised at how firmly Republican leadership has circled the wagons around their leader. I suppose they’ve weighed the political expediency of standing by him with the potential advantages of distancing themselves, as he is finally being called to account for his alleged criminal transgressions. The math must weigh in favor of loyalty, because it’s hard to discern any other rational basis for the path they’ve chosen. To make that decision without having read the indictment seems a little risky, to say the least, but those who have made that bed are now going to have to lie in it, at least until, as sometimes happens, the gradual peeling away of support begins with every new drip-drip-drip of evidentiary revelation.

Some decry the indictment of a former President, suggesting not only that such an indictment is unprecedented (no phonetic pun intended), but also that it is politically motivated. Their opponents counter that no person is above the law, not even a former President, and that this former President should not be treated any differently from others accused of committing similar crimes.

The news media and pundits frequently bring up Watergate as the most relevant precedent, and while there are similarities, I think there is another case that may more closely resemble this one – the Bill Clinton/Monica Lewinsky matter. You’ll recall that case – a President survived impeachment over whether he had committed perjury when, in a deposition in a separate matter (a civil suit brought by a woman named Paula Jones), he falsely denied under oath that he had a relationship with Lewinsky, a White House intern. But what we tend to forget is that wasn’t the end of the story.

After the impeachment proceedings had concluded, Clinton was still being investigated by independent counsel Robert Ray (Ken Starr’s successor). At issue was whether Clinton would be criminally indicted for perjury, as well as whether he would lose his license to practice law issued by his home state of Arkansas. Hours before Clinton left office at the end of his second term, he struck a deal with Ray by which Ray agreed not to indict him in exchange for Clinton publicly admitting that he had testified falsely in the Jones case, agreeing to a five-year suspension of his law license (issued by the state of Arkansas), and paying a $25,000 fine. (Two decades later, by the way, Trump hired Ray to represent him in his second impeachment trial.)

It seems unlikely that Clinton would have agreed to the deal if he did not believe he could be indicted after leaving office. (Nixon and Ford, both lawyers, also must have understood that Nixon could be indicted after leaving office; otherwise, why did Ford need to pardon him?) It also seems clear that the only thing that saved Clinton from indictment was his willingness to admit his wrongdoing and accept the consequences that the prosecutor offered.

The parallels between Watergate and the Clinton saga, on the one hand, and Trump’s New York problem, on the other, while not perfect, are pretty close. Nixon’s crime was paying hush money to cover up a break-in, and Clinton’s transgression was lying under oath about a sexual encounter with a subordinate. Trump apparently is about to be charged with paying hush money to conceal a sexual encounter with a porn star, although the exact legal theory for the charge is not yet clear. In Nixon’s and Clinton’s cases, it seems obvious that each President’s motivation was to avoid embarrassment and a premature end to his political career. The prosecutor in Trump’s case seems likely to claim that Trump sought to cover up his alleged encounters with Stormy Daniels to protect his own political ambitions, as Trump was approaching the finish line of a wild Presidential race.

There are two glaring dissimilarities among these cases. First, Nixon and Clinton were already in office when they engaged in the misconduct at issue, while Trump had not yet been elected when the events at issue in his case occurred. Yet that only seems to magnify the likelihood that Trump would have wanted to hide his encounters with Stormy Daniels from the electorate to improve his chances of winning the office that Nixon and Clinton once held.

The second significant difference is that Trump is being indicted after announcing his candidacy for the Presidency. Nixon and Clinton, as two-term Presidents, would not have been eligible to run again at the time they could have been prosecuted. (As I understand it, Nixon would not constitutionally have been able to run for President again because he had served more than one term and therefore was not eligible for another four-year term, but in any event, his resignation precluded another run for all practical purposes.) Trump is not only a past President, but also a present candidate for President. Whether he declared his candidacy early in the hope of shielding himself from prosecution or for other reasons, the fact of his candidacy is now giving his attorney and his allies ammunition for deriding the Manhattan indictment as political persecution, a theme we will be hearing for the duration.

Regardless of the similarities and differences though, one important point should not be missed. Nixon escaped prosecution only because of Ford’s pardon, and Clinton escaped prosecution only because of the deal he struck with Ray. What we don’t know, and may never know, is whether Trump was offered a deal that he turned down. I have been involved in a few criminal cases, and it seems highly unlikely to me that the Manhattan District Attorney would not have tried to resolve the Stormy Daniels matter with Trump and his attorneys informally before going public with a criminal charge. Any such discussion would have been a private one, and may forever be shrouded in secrecy.

We can only speculate about whether District Attorney Alvin Bragg offered Trump a deal, what any such deal might have consisted of, and, if one was offered, whether and why Trump turned it down. But we should not assume that the D.A. recklessly plunged into an extraordinarily controversial, historic, and politically charged prosecution without exploring the possibility of a negotiated resolution with the supposed king of the deal. And unless and until we know that backstory, we should give the prosecutor the benefit of the doubt that he is only doing his job, faithful to his oath of office.