Trump verdict courts disaster no matter how it lands

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Donald Trump is about to become the first person in US history to face criminal charges before a federal judge that he appointed. Her name is Aileen Cannon, she was confirmed to the court a few days after Trump lost the 2020 election, and has made some truly idiosyncratic procedural rulings in Trump’s favour during this particular investigation, which were quickly smacked down on appeal.

Now, with a trial in the offing, the computer that assigns cases to judges has happened incredibly upon her. So, while Trump and his supporters thunder about this indictment as a political conspiracy that threatens to kill the republic, some lawyers less in Trump’s thrall are already demanding Cannon recuse herself or be replaced.

Former president Donald Trump has pleaded not guilty to 37 federal charges of mishandling classified documents.Credit: AP

This captures, in miniature, the deep, turgid quagmire the Trump indictment inevitably is. First, it should give pause to anyone inclined to assume Trump will be convicted. Before this gets anywhere near a jury, Cannon will have to rule on a series of questions about what evidence gets into the trial, and what evidence is kept out on a range of bases – improper conduct in the investigation, or lawyer-client privilege, for example. That could have a profound effect on the case. But second, it shows how this matter is so thoroughly, inescapably political, that it courts disaster no matter how it lands. In the circumstances, it’s hard to decide which result will tear the country apart more: conviction or acquittal.

Which raises an obvious question: should the charges have been brought at all? On one hand, how could they not be? The classified documents Trump has allegedly taken home include sensitive national security information. Apparently, they were carelessly stored, and even shown to people without the necessary security clearance. Sure, presidents often end up having classified documents in places they shouldn’t, but these are typically handed over upon request. Had Trump done the same, this whole matter might have long been settled.

Unfortunately, Trump did no such thing, denying, delaying and fighting these requests for months on end. He even claimed he had made the documents unclassified, but prosecutors have a recording of him specifically describing at least some of the documents as “secret information”, before adding “as president, I could have declassified … Now I can’t”.

Faced with documents of this seriousness, and brazenness of this shamelessness, it’s easy to see why the Department of Justice would want to prosecute to deter anything like this in the future. No doubt it carries unpredictable political consequences, but is it for prosecutors to consider them? Do we really want to see prosecutors decide whether or not to proceed by figuring out what they think politics demands? As a matter of abstract principle, I’d much prefer to see prosecutors pursue serious felonies on their own terms, for their own seriousness, and let the political chips fall where they may. I’d quite like them specifically not to think about politics.

Judge Aileen Cannon is seen in a still image from her video interview with members of the Senate Judiciary Committee in July 2020.Credit: Committee on the Judiciary

Except the Department of Justice has an established custom of not investigating or charging candidates in the lead-up to an election. That might seem a subordination of the law to politics, but actually it’s something like the reverse: minimising the scope for politics to weaponise and corrupt legal processes. The Department of Justice is under the control of the attorney-general: a political figure. Once you open the door to prosecuting candidates – especially front-running candidates from the opposing party – you open a door to very dark possibilities indeed.

The conventional wisdom is surely that letting a candidate get away with some wrongdoing is a lesser evil than letting an incumbent administration use this power to manipulate (or eliminate) its opposition. Those insensitive to that risk might wish to consider how this power might look in the hands of the next Republican president, possibly even Trump himself after having had it used against him.

In fairness, Attorney-General Merrick Garland does seem sensitive to this. Three days after Trump announced his candidacy, Garland transferred the investigation – which had already commenced – to an independent special counsel. It’s about the most Garland could do without simply suspending the investigation, but that doesn’t mean it’s enough to render the whole investigation apolitical.

Certainly not in an environment so totally political as the current United States. And certainly not when the charges themselves are directly connected to Trump’s political status as a former president. Perhaps it would be different if the charges were confined to his private life – say, something to do with tax fraud. But as things stand, Trump is exactly where he works best: at the centre of the political conversation, railing against the elites who run a corrupt system designed to bring him down because they didn’t like his presidency.

His opponents see the unprecedented nature of all this as evidence of the singular threat Trump poses to democratic life. His supporters see it as evidence of the lengths to which his persecutors will go to satisfy their obsessions. In the end, Trump is either exonerated or martyred. For his style of politics, either works.

The wiser path might have been not to pursue this until after the election. Sure, that leaves the possibility Trump wins that election and escapes all accountability for his actions. But this indictment might only have increased the chances of that victory, anyway. At which point, President Trump could simply pardon himself for any conviction, and suffer no crisis of legitimacy among his ardent supporters, and perhaps even his more lukewarm ones. After all, they will have noted the indictment and already factored it into their vote.

What a hopeless paradox. So fused are politics and the law in American life now that neither can stand alone in its proper place. The court becomes merely another theatre for politics, in which rulings gain their legitimacy from little more than the extent to which they give people the answers their politics demand. Which is to say, roughly half the country is apt to consider them illegitimate at any given moment.

But when everything is political, politics itself suffers irreparably because ultimately, politics needs things which sit outside it in order to flourish. It needs institutions that can restrain it, resolve its deadlocks, escape its logic of winning at all costs, bind partisan foes. Can such things exist in America any more? Perhaps one day, we could ask Aileen Cannon.

Waleed Aly is a regular columnist.

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