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Trump Indictment Is Bad Law, Smart Politics

A Commentary By Michael Barone

What do you do to win an election when your candidate is universally known and unpopular with a majority of voters? That's a question both major parties have had to face in the last few years. Both look like they're going to face it for some time longer.

One way is to get the other party to nominate someone who is even more unpopular. Sometimes that happens, as when Barack Obama tried to clear the field for Hillary Clinton in 2016 or when no Republican wanted to risk the brickbats of challenging Donald Trump in 2020.

Now we're watching Democrats acquiesce to the apparent fourth presidential candidacy of 80-year-old Joe Biden. Such polling as there is shows him with well under half the votes in multicandidate primary fields.

But his closest competitors have obvious weaknesses. Kamala Harris has record low numbers for a vice president, Bernie Sanders is 81, and Pete Buttigieg has been an absentee transportation secretary in multiple crises. None has been chief executive of anything larger than Burlington, Vermont, or South Bend, Indiana.

The obvious solution for Democrats is once again to run against Donald Trump. He lost in 2020, and his postelection actions -- acting in reckless disregard of, if not actively encouraging, the Jan. 6 Capitol riot, preposterously boasting that he actually won in a landslide, focusing on his own complaints and ignoring those of actual voters -- haven't made him any more popular.

But what may have done so, at least temporarily, is the pathetically weak indictment procured by Manhattan District Attorney Alvin Bragg, who effectively won the office in 2021 by a three-point margin -- 34% to 31%.

Trump is charged with making a false business record in order to conceal a felony. The felony connection is essential -- otherwise, New York's statute of limitations would have expired in 2019. But what's the felony? The indictment doesn't actually say. In a press conference, Bragg suggested Trump violated federal campaign finance laws, but it's not clear the New York law covers them. And it's hornbook law that the government shouldn't be able to put you in prison for conduct it hasn't specifically criminalized.

Even liberal legal commentators have criticized the indictment. "Bragg," writes Vox's Ian Millhiser, "has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations." Similarly, Slate's Mark Joseph Stern warns that "this is not at all the slam-dunk case that so many Democrats wanted."

But it has had some of the political effects that so many Democratic strategists have wanted. Some Democrats who, pre-indictment, were proclaiming that no one is above the law have kept silent out of embarrassment at the weakness of Bragg's case or are perhaps aware of that argument's dissonance with their party's response when Bill Clinton unquestionably committed perjury.

But Republicans, even those adversarial toward Trump, have chimed in with similar criticism. "The prosecutor's overreach sets a dangerous precedent for criminalizing political opponents and damages the public's faith in our justice system," declared Mitt Romney, the only U.S. senator in history who has voted twice in impeachment proceedings to remove from office a president of his own party.

"The weaponization of the legal system to advance a political agenda turns the rule of law on its head. It is un-American," tweeted Ron DeSantis, who is obviously preparing to run in 2024 and has been leading Trump in some two-candidate polls.

Lo and behold, Trump's lead over DeSantis in national multicandidate polling in the RealClearPolitics average grew from 46% to 30% last Friday to 51% to 25% Wednesday morning. That's not as massive a shift as some of the political commentary suggests, and preferences in primary polling tend to be more volatile than in general elections when party loyalties settle in. But it is worthy of note that Trump's percentage of the vote in the 2016 primaries was 44% overall, and he had been stuck at that figure or below since last November, when the stark defeats of Trump-endorsed candidates who echoed his claim of a stolen 2020 election started to sink in.

Before the indictment, a growing number of Republican voters seemed to be thinking that it might be better to nominate a governor of a once-marginal state who was reelected with 59% of the vote than a former president who, when seeking reelection, had won only 47% of the popular vote. After all, 59 is a bigger number than 47.

"Any day spent talking about Donald Trump," writes National Review's Dan McLaughlin, "is a day Republicans are losing." Now Alvin Bragg's disgraceful indictment has got everyone talking once again about the man Democrats want them to be talking about. Bad law, smart politics.

Michael Barone is a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute and longtime co-author of The Almanac of American Politics.


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See Other Commentaries by Michael Barone.

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