The Indictment and Arrest of Donald J. Trump: Right Criminal, Wrong Charges?

by Vijaya Chandrasoma

Former President Donald Trump, the only sitting or former president of the USA to be indicted in the history of the nation, was arrested and processed at the Manhattan Criminal Court on Tuesday, April 4, 2023. Trump pleaded “not guilty” to 34 felony counts of falsifying business records, and was released on his own recognizance.

In addition to the New York indictment, there are three other investigations against Trump currently in progress.

The Fulton County District Attorney investigating into Trump’s alleged efforts to overturn his Georgia election defeat, told a judge on January 24 that a special grand jury had “completed its investigation task and that decision (to indict) was imminent”.

The US Department of Justice has investigations under way into both Trump’s incitement of the insurrection of January 6, 2021 and his illegal retention of classified and Top-Secret documents at his Mar a Lago resort after leaving the White House in 2021.

Trump has predictably accused, without a shred of evidence, that these probes carried out by prosecutorial agencies were further examples of political persecution and witch hunts against him. As he put it, “the only crime I have ever committed is to fearlessly defend our nation from those who seek to destroy it”. Sure, like he spent the entirety of his administration “fearlessly defending our nation”, compromising its security by sucking up to the nation’s main adversary, Russian dictator, Vladimir Putin.

The New York indictment was unsealed during the arraignment. There was much speculation after the indictment was announced that New York District Attorney Bragg had some charges over and above the hush money payment and falsification of business records – misdemeanors – up his sleeve which would conclusively prove Trump’s guilt of a felony. Such information was not immediately available.

Falsifying business records is only a misdemeanor. To elevate this to the level of a felony, the District Attorney must prove Trump had “intent to defraud” in the service of a second crime. It is presently unclear what crime or crimes Bragg will rely on to escalate these misdemeanors to felonies. At a news conference after the arraignment, Bragg mentioned that there were a number of such potential underlying crimes. The payment of hush money to a porn star, a campaign finance violation after he was elected to the White House seems to be the most likely of crimes to be so escalated to a felony.

One of the prosecutors, Chris Convoy, said at Trump’s arraignment: “The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election”.

Convoy added, “I would like to briefly address this defendant’s recent public statements threatening our city, our justice system, our courts and our office….. Public statements that threaten potential death and destruction and World War III if these charges were brought against him and he was indicted”.

Judge Juan Merchan, who presides over the case at the Manhattan courthouse, issued the following warning: “I would encourage counsel on both sides, the People to speak to your witnesses, Defense Counsel, speak to your client and anybody else you need to, and remind them to please refrain from making statements that are likely to incite violence or civil unrest or jeopardize the rule of law or the safety of anyone involved in the case”.

Probably acting under instructions of his team of lawyers, Trump’s demeanor during the arrest and arraignment was unusually somber, even fearful. He was not his usual ebullient self, as he realized, for the first time in his life, that he was not in control of the situation, monopolizing the rhetoric with a host of adoring members of his base cheering him on.

The wave of protestors Trump had called on to show their violent defiance against his arrest did not materialize. There were a few, among them Trump chief acolyte and QAnon nut case, Congresswoman Marjorie Taylor Greene. Greene was carrying a bullhorn, which unfortunately was not sufficient to drown the cheers of New Yorkers who were there to celebrate Trump’s arrest. In a brief press interview, Greene said that many exceptional people in history had suffered the ignominy of arrest, among them Nelson Mandela and Jesus Christ. A laughable and inappropriate comparison.

However, there was a division of opinion about the strength and timing of the indictment. Some legal analysts opined that the New York state case against Trump was both weak and ill-timed, that other investigations against Trump seem to be more compelling and should have been given priority.

Visiting Professor of Law at American University Washington, Kim Wehle, says she believes that District Attorney Bragg would have indicted Trump only if he was certain he could prove crimes were committed. “By all accounts, Bragg is a careful and experienced prosecutor. He understands the stakes, so I doubt this will be a flimsy case”.

The scheduling of cases is not a numbers game. Trump does not get a “free out of jail” card just because he has committed more serious crimes elsewhere. The prosecuting authorities do not consult each other when they schedule their cases. They bring their cases to trial when the evidence is gathered and investigations are complete.

The grand jury into the Georgia election interference case has already indicated that its investigations are complete and findings have been submitted to the Fulton County District Attorney Fani Willis. It is likely that Trump will be indicted on this case later this month.

Special Counsel Jack Smith, appointed by Attorney General Garland, is also finalizing his investigations into the January 6 insurrection and the illegal retention of documents cases. Trump could well be facing simultaneous multiple indictments in the near future.

Trump headed to Mar a Lago direct from the Manhattan courthouse. A campaign style rally had been scheduled that evening, at which the devotees of his base/cult were present to show their unconditional and vociferous worship.

Donald Trump missed a wonderful opportunity to consolidate the sympathy and support he had received after his arraignment, which even some moderate political analysts had argued was a weak case. He could have taken the high road and given a measured and sober speech about the injustice and political persecution he was suffering at the hands of the District Attorneys of New York and Fulton County, Georgia and the Department of Justice. This would have drawn to him support of not just his base but of moderate Republicans and Independents as well.

But Trump is Trump. The high road is not in his GPS. Low is his chosen path, the more depraved the better. During his Mar a Lago speech on the evening following his arraignment, Trump spectacularly contravened all the warnings given by Judge Merchan during the arraignment, to desist from incendiary speech that would incite violence or jeopardize the rule of law.

The speech was attended by loyal supporters Marjorie Taylor Greene, Matt Gaetz, Michael Lindell, and members of the Trump family. Melania was a notable exception. Obviously, she couldn’t be bothered to come downstairs to attend the gathering. The sad conclusion may be what has long been suspected: Melania is also a “Trump hating” wife, which is how Trump described Judge Merchan’s wife in his speech below!

Trump aired his usual litany of grievances since 2016, whining about the numerous witch-hunts he has faced, and the imaginary political persecution that the evil Democrats have heaped on him over the years. He insulted “Trump hating” Judge Merchan, his “Trump hating” wife and even his daughter. He called District Attorney Bragg an animal, the Fulton County, Georgia District Attorney a racist in reverse and abused Special Counsel, Jack Smith as a “lunatic and a bomb thrower”. And his supporters greeted the filth and vulgarity spewing out of his mouth with undying adulation. This is what the self-confessed “greatest nation in the world” has become in post-Trump America.

Trump will soon be made to realize that he is no longer a person of privilege, not even just a plain citizen, but a common indicted criminal. Judge Merchan may meet such incendiary tirades and muzzle Trump with the imposition of a gag order, which could well lead to charges of contempt of court and jail time, if violated.

The Constitution of the USA states that “no one is above the law”. Specifically, Article II Section 4 of the Constitution specifically states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors”.

Republican President Nixon famously contravened this Clause in 1973, when he was asked about his crimes on Watergate of obstruction of power and contempt of congress. “Well, when the president does it, that is not illegal, by definition”. A self-serving interpretation of the Constitution that was roundly rejected by a Republican controlled Congress. Nixon resigned before he was put on trial, convicted and imprisoned. He avoided jail-time by being pardoned by President Gerald Ford.

Attorney General William Barr and the Department of Justice during the Trump administration ruled, blatantly against the Constitution, that no sitting president could be indicted, even investigated, for any crimes committed during his presidency, compromising one of the main tenets of a Democracy – that no one is above the law. This illegal misinterpretation of the Constitution was used to ensure that Trump got away with myriad crimes – obstruction of justice, the emoluments clause, extortion, espionage, to name just a few – they ruled did not fall within the phrase “high crimes and misdemeanors”.

“We don’t know how any of this will play out – the legal process, the politics or the impact on the nation more generally”, said Princeton Professor of History. Julian Zelizer, “But we can understand that this is a first effort, relevant to restore some sense of accountability with those who hold the highest level of power”.

New York District Attorney Bragg will go down in history as the first state prosecutor in the history of the USA to hold a former or sitting president accountable for his crimes. Win or lose, a precedent has now been established that no one who has committed a crime is above the law. The Rule of Law and Democracy is at last safe in the United States of America.

Till November 2024, at least.