The Criminal Case Against Donald Trump: Was It A Mistake To Indict Him?

Posted by  on April 4, 2023
The Criminal Case Against Donald Trump: Was It A Mistake To Indict Him?

Blog by Arun S. Maini

The Manhattan District Attorney has brought a criminal case against former President Donald Trump. 

Was this a good idea?

Opinion is divided between those who think it is about time that he be held accountable for a lifetime of lies, fraud and misinformation, and those who think he is being scapegoated for having had the temerity to challenge the ruling elites- and win. 

Whether you are a fan of Trump or not, there are several important questions surrounding this criminal case. And three big problems for the prosecution. 

No one is above the law

This is a fundamental principle of justice embedded in the U.S. Constitution. Indeed, it is a cornerstone of democracy in many countries. It should not matter whether one enjoys a privileged position of wealth and power, or struggles at the margins of society: the law should be fairly and impartially applied. 

That is a pretty basic principle that everyone can understand and support. The wealthy and the powerful have the means and opportunity to ensure that the law benefits them; the poor and disenfranchised do not. Knowing that the supreme law of the land guarantees at least in principle that the law will be equally applied helps to keep society intact and avoids the historical tendency to resolve disputes through violence and the exercise of brute force. 

The United States was founded in opposition to the unlimited rule of a monarch; they chose to limit the power of their leader, and the length of time that he or she can remain in office. That leader can also be subject to criminal investigation and charges just like any other citizen. 

No former President has ever been indicted

True, but there has arguably never been a President who has been so persistent in violating the norms of a democratic society either. At a certain point, it was perhaps inevitable that by sowing chaos everywhere, one might cross a line into what could be considered to be illegal. 

And while no former US President has even been indicted, there have been leaders of democratic countries who have faced criminal investigation and even criminal charges, most recently in France and Israel. 

If the President is supposed to be a citizen like any other, the mere fact that they may face criminal charges should not be so controversial. What makes it more complicated is the flip side of that coin: the President should be able to leave office and resume life in the community like an ordinary citizen as well, without being targeted for political retribution, as discussed in the next paragraph below. 

The peaceful transition of power

As the most powerful country in the world, the fact that the leadership in the United States changes frequently and peacefully as the result of elections is another keystone of democracy in that country. 

Part of a peaceful transition of power means that those who are leaving office can rest assured that they will not suffer recriminations, punishment or revenge for having won or occupied the office. In many less democratic countries, leaders cling to power because they fear the retribution that may befall them when they leave- so they don’t leave. A leader who fears his fate when he gives up the levers of power is a leader who will do anything, legal or not, to stay there. 

The fact that US Presidents come and go, and do not suffer punishment for having held the office, has long been a sign of the success of American democracy. The indictment of Donald Trump threatens to undermine that stability. 

If the hard-core supporters of Donald Trump (and they make up about a third of the electorate) believe that their hero is being persecuted for having won the 2016 election and for his actions as President, then one day when the shoe is on the other foot and Joe Biden or another Democrat is leaving office, it is not hard to imagine that they may seek revenge for what they believe to have been a politically motivated prosecution. 

Is the decision to charge Trump a political one?

The reason that this question is so important is that is bears on the key notion that no one is above the law, and that a former President enjoys the same rights and freedoms as any other citizen.

The decision to charge someone with a criminal offence should be based on evidence. If a crime has been committed and the investigators have the evidence to prove it, then that person should be charged and have the opportunity to defend against the allegations. 

Normally, a crime is committed first, and then it is investigated. If the evidence supports it, charges are then brought against a suspect. The risk in politics, as we often see in less-democratic countries, is that a person is investigated rather than a crime, usually because of who they are or the position that they hold, while the investigators look for a crime to charge them with. In some cases, where no evidence of a crime can be found, the investigators, especially if they are politically motivated, may seek to fabricate a case against their target. 

It is critical in a democracy that people have confidence that the law will be applied impartially, and not target people solely because of who they are, the opinions they express, or the position they hold. 

In the case of Donald Trump, who is one of the most publicly visible and controversial figures in recent history, these principles are magnified. There is both an opportunity and a risk here: on the one hand to demonstrate that no one is above the law, and on the other that the law will be seen as a weapon to target ones’ political opponents. 

However, because Trump is so controversial, there is a real risk that this message will not come across, and may even come across in the opposite way. If the case against Trump turns out to be murky or unclear, then the declarations by his supporters that he is a scapegoat or the subject of a witch hunt may appear, at least to them, to have some basis in reality.

Tread carefully

Those who are in charge of investigating allegations against Donald Trump face a difficult task: to maintain confidence in the administration of justice, in the face of enormous political pressures and risks. Pressure to hold accountable for his actions a man who has generated such strong emotions over a lifetime of controversy, versus the risk of appearing to be merely out for revenge. 

The way to navigate that difficult course is to ensure that the case against Trump is clear and airtight. That those who pursue the charges and prosecution are impartial. And that the process is a transparent one, where rights and procedures are understood and respected. 

That is the trouble with the case being brought by the Manhattan D.A. against Trump: it suffers from three main problems that threaten to undermine the case and the intended effect of the prosecution.

The Three Problems With the Case Against Trump

The first big problem with the case being brought by the Manhattan D.A. is that the person in charge of that office is an elected official who boasted during his election campaign that he had sued Trump many times on behalf of the state. 

Even if the people who do the day-to-day work of investigating and prosecuting the case against Trump maintain distance from the elected D.A. who is bringing the case, it is hard for people, especially those who did not want to see Trump charged, to see them as being separate and impartial. 

The second problem is that case is murky and complex. This is not about Trump paying off a mistress to hide an affair. To find him guilty, the prosecutor must prove that Trump concealed the payment as a business expense, and further, that this was a violation of federal campaign finance laws. So there are two separate crimes that have to both be proven to find him guilty. And the second one is a novel proposition: that Trump could be found guilty of a state crime for violating a federal statute. It would have been a lot simpler for the federal government to have brought the case against Trump, but they did not proceed against him. Leaving aside the allegations of political interference into that decision, the fact is that the state is seeking to build a case on federal territory, where the feds themselves have decided not to proceed. 

The third problem is that the key witness for the prosecution is now a convicted felon, Michael Cohen, who turned against Trump after being his lawyer for many years. Being privy to his secrets means that he had the most intimate knowledge of Trump’s affairs, and personally knows what really happened. But having been jailed and being passed over for a pardon by Trump also means that Cohen may feel strong motivation to seek revenge against his former boss by testifying against him. Trump’s defence team will argue that Cohen cannot be trusted to give true, unbiased evidence. 

The prosecution must prove the case beyond a reasonable doubt to be successful. That is a high standard, especially given all the ways that the defence can try to raise reasonable doubt. When there are concerns expressed about whether the charges are politically motivated; when the case is complicated and stretches into previously unexplored legal concepts; and when it is based on the testimony of a biased and perhaps unreliable witness, then trying to be the first to convict a former US President may turn out to be a very difficult mountain to climb. 

Regardless of whether Trump wins or loses the case, it will make for heated rhetoric, a media and political circus, and breathless live reporting on all the news networks. The publicity may well prove to be a win-win for Trump, regardless of the outcome of the case. News organizations are giddy with anticipation. The effect of all this on democracy and justice, however, may not be understood for some time. The threat that this case poses to the prospects for future political peace and stability in the United States, however, is very real.  

Arun S. Maini at the Defence Group has over 25 years of experience as a criminal defence lawyer. If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website. 

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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