Rule of Law

Possible Trump Indictment Shows the Rule of Law at Work

According to press reports, a grand jury in Manhattan is likely to indict, and Manhattan District Attorney Alvin Bragg is likely to charge, former President Donald Trump for his alleged role in hush money payments made to Karen McDougal and Stephanie Clifford (also known as Stormy Daniels) during his 2016 presidential campaign. These payments were purportedly made to keep information about sexual relationships with these women from becoming public during the campaign. Based on this fact pattern, a number of charges under New York law are possible, including the falsification of business records and related campaign finance crimes. While the identity of the individual (a former president) being indicted and criminally charged might be exceptional, nothing else about this moment would be. We are simply witnessing our legal system and rule of law principles at work.

The grand jury system operates every day across this nation. In this instance, a group of 23 American citizens who reside in Manhattan, randomly selected and meant to represent a cross-section of their community, are discharging one of their most serious civic responsibilities by serving as jurors. Under an oath requiring them to be fair and impartial, these jurors have been tasked with carefully examining the evidence placed before them by their locally elected prosecutors to determine whether the evidence is sufficient to justify an indictment, which allows the district attorney to bring charges. For those, like me, who have served on grand juries, we’ve had the chance to observe how seriously everyone involved in the process—jurors, prosecutors, bailiffs, court clerks—takes this process.

Some quarrel with the application of the ordinary in this instance, objecting that Donald Trump should not be prosecuted because he is an announced political candidate for the 2024 presidential election. But this objection doesn’t survive closer scrutiny. For while we would not want a legal system in which political candidates are investigated and charged simply because they are running for office, we also do not want a system in which political candidates are permitted to flout the law simply because they are running for office.

The record makes clear that Trump’s political candidacy is unrelated to decisions being made by the Manhattan district attorney’s office. First, the investigation into the hush money payments began in the summer of 2018 under then-District Attorney Cyrus Vance, Alvin Bragg’s predecessor. This long predates Trump’s Nov. 15, 2022, announcement of his candidacy. Second, if the charges include falsification of business records, the Manhattan district attorney’s office has a long history of prosecuting these offenses, both as felonies and misdemeanors. This is not a minor offense that has gone unpunished in New York and is being selectively applied to Trump. If schoolteachers and auto-repair shop owners can face legal consequences for falsifying business records, then why shouldn’t the same be true for Donald Trump? Third, at least one person has already served prison time for their part in the very payments at issue in this investigation. Michael Cohen, who once served as a lawyer and “fixer” for Trump, pleaded guilty and was sentenced to three years of prison time in a federal prosecution relating to these payments.

Central to the rule of law in this nation is the idea that no one is above the law. The law that binds everyday Americans should bind the most powerful Americans, too. This is not an abstract concept embraced only by political scientists and legal scholars. It is an idea viscerally understood by people across our diverse country. The results of a Reuters/Ipsos poll released this week indicate that 85 percent of Americans surveyed said that if Donald Trump broke the law, he should stand trial. And this embrace of accountability and fairness seemingly exists across party lines. The same poll indicated that 88 percent of Americans (or roughly 9 out of 10 Americans) agree that Donald Trump is not above the law, “including 94 percent of Democrats, 89 percent of Republicans, and 79 percent of independents” surveyed.

If Trump is indicted and charged in New York, and if he pleads not guilty, the process will move to another phase in our legal system, the trial phase. Then another randomly selected group of American citizens who reside in Manhattan, intended to represent a cross-section of the community, will serve as trial jurors. They will take oaths to be fair and impartial and will be tasked with following the facts and the law wherever they lead. Their work, like the work of juries across the country, will be critical to the functioning of our system of legal accountability. And they will help to vindicate a key tenet of the rule of law: no one—not even a former president—is above the law.