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Going one for four

by Bradley Gitz | September 4, 2023 at 5:00 a.m.

Our country went nearly two and a half centuries without a former president or front-runner for a presidential nomination being indicted, but Donald Trump has now been four times in the space of only a few months, regarding which:

The first indictment, the one that set off the cascade -- Alvin Bragg's in New York -- is by far the weakest, to the point where anyone attempting to defend it on points of law with a straight face should probably be disqualified from commenting on matters of law ever again.

Even if Bragg obtains a conviction in a Trump-hostile environment, it won't have a chance of holding up on appeal.

The strongest indictment, by far, involves Trump's mishandling of classified documents, because (1) the evidence of his doing so appears overwhelming; (2) the pertinent laws are clear and require no invocation of novel legal theories to apply; and (3) it is difficult to see what other decision Jack Smith could have made than indict, even accounting for prosecutorial discretion (if Trump weren't indicted in this particular instance, it becomes difficult to see how anyone could be, and how our laws regarding the handling of classified documents wouldn't lose all relevance)

While the classified documents indictment should be taken seriously, and the Bragg indictment not, the Jack Smith and Fani Willis cases come perilously close to criminalizing political opposition and undermining the free-speech protections that are necessary for the conduct of democratic politics.

Yes, it is important to discourage reckless (unsubstantiated) claims of fraud and stolen elections, but our efforts in that regard shouldn't go so far as to also discourage contestation of election results by legitimate means, and both the Smith and Willis indictments muddy the water regarding what is and isn't permitted in that regard.

We should also be wary of exerting any kind of "chilling effect" regarding the questioning of election outcomes while continually loosening actual election voting procedures. The looser voting procedures become, the more important it is to be able to assure that fraud hasn't influenced the results, and within this context election challenges constitute a necessary means of preserving election integrity.

At the heart of the Smith indictment is the particularly dangerous claim that elected officials who disseminate lies and organize political activity around those lies are engaging in "conspiracy" to commit "fraud." If accepted, such a claim would criminalize large swaths of ordinary political life.

To grasp this, one need only apply the Smith criteria for conspiracy and fraud to Joe Biden's student loan executive order, to take just one out of what could be many examples.

First, Biden was reportedly told by many around him that what he was proposing to do -- forgive student loan debt by executive action, without the consent of Congress -- was unconstitutional and thus illegal. Nancy Pelosi was on record saying this, as was even Biden himself. But Biden did it nonetheless and then mobilized (in a much more coherent manner than Trump organized his "stop the steal" campaign) the executive branch, the Democratic Party and sympathetic media to support the lie that he had behaved in a constitutional manner.

If anything, it is possible that Biden's actions fit the Smith criteria to an even greater extent than Trump's, since everything we know indicates that Trump believed, and still believes, that the election was stolen by fraud; whereas Biden knew, by his own admission, that his loan forgiveness wasn't constitutional.

The point isn't that Biden should be prosecuted for his actions, however dubious and transparently craven, but that it will become all too easy for partisans in future to transpose the Smith criteria for conspiracy and fraud upon all kinds of political activity which they happen to oppose, taking us so much closer to the routine criminalization of political disagreement.

As a logical proposition, believing that Donald Trump is being prosecuted for political reasons doesn't also require the belief that he should be the Republican presidential nominee.

If the goal is to halt the Democratic Party's use of politicized justice, then it would be necessary to take steps to maximize the likelihood that Democrats lose next year's elections, especially for president.

There is thus a failure on the part of too many Republicans to this point, as they rush to Trump's defense, to think things through and match ends (ending a "two-tier justice system") with means (nominating candidates most likely to defeat Democrats).

Indeed, responding to the politicized indictments of Trump by making him the GOP presidential nominee only increases the likelihood that Democrats will stay in power and thus retain the power to issue more politicized indictments.

Finally, to argue that the Smith and Willis indictments are based on dubious legal theories, are weak in terms of legal merit, and might set dangerous precedents doesn't make one a Trump supporter.

Again, all too few these days seem capable of assessing anything involving Trump in anything resembling an objective, dispassionate manner -- those who hate Trump will view any indictment of him as justified and any convictions warranted, those who love Trump will view the same indictments as politically motivated and any convictions as miscarriages of justice.

For both sides, the legal merits and implications of the indictments matter little, tribal loyalty a lot.

Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.

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