Republicans are warning that the unprecedented indictment of former President Trump on multiple charges sets a dangerous precedent that will lower the bar for future political prosecutions while putting the nation on a precarious slippery slope.
Some Republicans are comparing Trump’s indictment — over crimes related to the payment of $130,000 to an adult film actress — to the House Republican impeachment of then-President Bill Clinton in 1998 on charges related to his affair with a White House intern.
They predict that indicting Trump will make future former presidents and other political figures more susceptible to politically motivated prosecutions.
Democrats counter with the refrain that no person is above the law, regardless of whether he served in the Oval Office.
But some Democrats were not thrilled to hear that Manhattan District Attorney Alvin Bragg (D) would be the first prosecutor to indict Trump; the conduct he is targeting has been publicly known for five years and other prosecutors, including Bragg’s predecessor, Cyrus Vance Jr., passed on the opportunity.
“I think it is a terrible precedent for the country. I think it’s bad for America, bad for the Republican Party and it’s bad for the political system in our country. Once you start down this path, there’s no way you’re going to reverse it. That’s what we saw with impeachment,” said Vin Weber, a Republican strategist and former member of the House GOP leadership.
“We’re going to see political prosecutions brought, some of them for meritorious reasons, some of them to advance the careers of the prosecutors. But all of this is harmful to America and our political process,” he added.
Weber said “another whole aspect” of the case is that Trump is the frontrunner for the Republican presidential nomination in 2024, according to 10 of the most recent national polls.
“There are people in this vast country of ours who have less than sterling motivations and you want them to be inhibited by rules that we’ve established, informal rules, that are designed to protect the whole system,” he said.
“Once this wall of precedent has been destroyed, we’re going to find people around the country who are going to find reasons to engage in political prosecutions,” he added, noting that some Republicans are talking about the possibility of bringing charges against President Biden or his son Hunter after he leaves office.
“I don’t know if that’s likely or not but we’re going to see something somewhere,” he said.
Some Republican officeholders are framing Trump’s indictment as motivated purely by politics.
“These charges aren’t about enforcing the law. Democrats barely pretend they are. They are the left telling the nation, we’re in charge here. And if you threaten us, we will destroy you,” Sen. Josh Hawley (R-Mo.) tweeted last week.
Former Sen. Judd Gregg (R-N.H.), a one-time adviser to Senate Republican Leader Mitch McConnell’s (Ky.) leadership team, said “it’s extremely dangerous for our democracy to indict a former president unless there is an unequivocal violation representing a very significant offense.”
“This does not appear to rise anywhere near that. In fact it appears to be extremely political from a distance,” he added. “So I think it sets a precedent, and it’s a very dangerous precedent for democracy.
“It creates an atmosphere where the courts are being used as a political weapon,” he said. “It undermines I think the confidence of the American people in their democracy, in their legal system.”
Critics of Bragg’s case, such as Sen. Ted Cruz (R-Texas), point out that Trump’s then-lawyer, Michael Cohen, made the $130,000 payment to Stormy Daniels before the 2016 election and the statute of limitations in New York is two years for misdemeanors and five years for minor felonies.
These critics believe Bragg will try to tie that payment to an effort to conceal another crime, most likely a violation of campaign finance law, to get around the statute of limitations.
Cruz noted that a similar charge was brought against former Sen. John Edwards (D-N.C.) and was thrown out at trial. Edwards used nearly $1 million in payments from his political backers to support his mistress during the 2008 campaign. Democrats at the time criticized the charges brought by a Republican prosecutor as politically motivated.
“Bragg’s case is even weaker because [the New York law in question] is ordinarily a misdemeanor with a two-year statute of limitations, so he couldn’t bring the claim,” he said. “In order to get it to be a felony, there’s a separate New York statute, which requires you have a fraudulent business record that aided in another crime.
“He’s got to bootstrap presumably a federal campaign finance violation, which the federal government declined to bring,” Cruz explained. “The core allegation at the heart of Bragg’s case is that Trump mischaracterized a payment as legal fees when it was not in fact legal fees.
“Hillary Clinton at the exact same time, in 2016 during the presidential campaign … paid $1 million for the Steele Dossier to be compiled — the fake and fantastical work of fiction that her oppo research team put together that tragically became the basis of [Special Counsel Robert’ Mueller’s] investigation,” he said.
Cruz said Clinton also characterized the funding of the Steele Dossier research as legal payments, arguing that this shows Bragg is playing politics.
“It make obvious this is partisan politics,” he said.
Experts say the precedent set by indicting Trump will reverberate into the future.
“Every time a threshold is crossed in politics, it sets a predicate for another line to be crossed. Once a taboo is violated politically, it just makes it easier to do it a second time. There’s precedent,” said Ross K. Baker, a political science professor at Rutgers University.
He said Bragg’s case appears to be weaker than possible charges anticipated from Department of Justice special counsel Jack Smith and Georgia’s Fulton County District Attorney Fani Willis.
“I think it would be better if the precedent were stronger. If it were an open-and-shut case, it would be harder to argue … local district attorneys shouldn’t have the power to indict presidents,” he said.
Baker said the “gravity” of the allegations against Trump related to his alleged role inciting the Jan. 6, 2021, attack on the Capitol and to his alleged role in trying to subvert the election results in Georgia in 2020 would give any charges brought by the Department of Justice or the Fulton County DA’s office more credibility than Bragg’s case.