Photo-Illustration: Intelligencer; Photos: Getty Images
the national interest

Trump Isn’t Above the Law, But He Shouldn’t Be Below It

This is like getting Al Capone for paying off his mistress.

Photo-Illustration: Intelligencer; Photos: Getty Images

“No one is above the law.” If you have opened a newspaper or glimpsed at CNN, you have heard a Democratic official recite this truism with regard to the Manhattan district attorney’s indictment of Donald Trump. The political value of this slogan is that it accurately captures Trump’s maddening ability to defy the law for decades on end while suggesting that his immunity is coming to a just and proper end.

But as a defense of the indictment, “no one is above the law” is not remotely adequate. It implicitly places the law itself beyond questioning. The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge.

The legal deficiencies of Alvin Bragg’s indictment have been thoroughly litigated in the media. The case converts what would normally be misdemeanor charges of falsifying business records into 34 felony counts by arguing that $130,000 in hush money paid to Stormy Daniels was an illegal campaign expenditure and each record created for it was criminal.

To imagine this particular combination of campaign-finance charges and business-records enforcement as simply “the law” is wildly naïve. Prosecutors have some cases that clearly constitute crimes (say, tax fraud), others that clearly do not constitute crimes, and a nebulous middle ground in which judgment is required.

This last category is where the greatest potential for political abuse lies. During Trump’s presidency, his critics invoked this old aphorism: “For my friends, everything. For my enemies, the law.” The warning was not only that Trump’s allies would have carte blanche to commit crimes but that his enemies would be held to the strictest possible standard.

When James Comey decided not to prosecute Hillary Clinton for her use of a private email account, he did not deny that she’d violated the law. Nor was he saying she was above the law. He was correctly acknowledging the role played by discretion and proportion in weighing the step of bringing legal charges.

The specific danger that Comey avoided, but that Bragg wanders directly into, is the criminalization of politics. Elected officials ought to be held to the same standard as other Americans. While their standing does not give them license to commit crimes, it also shouldn’t expose them to criminal liability that a regular person would never face.

Trump is in this position because he maneuvered to keep quiet a tawdry story about his infidelity. That is not a crime. The alleged crime is disguising the source of the payment and, thereby, evading campaign-finance law. But it is not easy for a candidate to pay off a mistress while complying with campaign-finance laws. Trump is in a position where an activity he could have done legally became a crime simply because he was a candidate for office. The entire scheme follows from his effort to cover up an alleged affair. That is the definition of being below, not above, the law.

The best case I’ve seen for why Trump’s hush money should be considered a serious and prosecutable offense, rather than a technicality, was made by Amanda Carpenter. “The hush money did what Trump wanted it to do: It kept the women from talking,” she argues, referencing the National Enquirer’s “catch and kill” of Karen McDougal’s story of sex with Trump, which was, like Daniels’s encounter, fully consensual. That may be true, but even if you assume that the public had some important right to know about Trump’s affairs, campaign-finance laws are neither designed nor intended to enforce that right.

It may feel frustrating or pointless to insist on fair treatment for Trump when he and his devotees observe no such distinction themselves. It is true that most Trump defenders would denounce even a bulletproof legal case against him. (They are, in fact, already trying to paint the much stronger looming charges against Trump as equally weak.) It is likewise true that they need no “precedent” to justify their attempts to criminalize Democrats for spurious reasons — that corruption of justice already began under Trump’s administration, in fact.

Yes, the first criminal charge against Trump carries special symbolic importance. Yet we are loading more social and political weight on these charges than they can bear. The world can be a complicated place. Sometimes people with good intentions do bad things, and sometimes bad people are the victims of unfairness.

The correct response to Trumpist hypocrisy is to wait for it to manifest rather than abandoning standards of fairness. Since Trump faces a high likelihood of being charged for one or more solid crimes in the very near future, the only price of intellectual consistency is a modest degree of patience.

Trump Isn’t Above the Law, But He Shouldn’t Be Below It