The indictment against former President Donald Trump involving a payoff to suppress claims of an extramarital sexual encounter is raising concerns that it could undermine public confidence in what democracy experts view as far more important investigations.
Trump is facing multiple investigations related to his refusal to accept his 2020 loss to Democrat Joe Biden. That includes whether he pressured election officials to overturn the results, encouraged fake electors from battleground states and his role in the events that led to the Jan. 6, 2021, assault on the U.S. Capitol.
Jeffrey Engel, founding director of the Center for Presidential History at Southern Methodist University, called the indictment this week from a New York grand jury “the appetizer to their main course still to come."
“That main course, literally, is democracy at stake and who we are as a nation,” he said.
The New York investigation that led to Thursday’s indictment involved hush money paid to porn actor Stormy Daniels at the tail end of the 2016 presidential campaign. But some worry that the charges — which remain under seal — could distract public attention from the other cases, which are more squarely focused on attacks against the country’s democratic institutions and traditions.
Larry Diamond, an expert on democracy and senior fellow at the conservative Hoover Institution at Stanford University, said he was nervous that the New York charges will “trigger all of the charges of politicization against him and misuse of the judiciary.” It’s a theme Trump has been emphasizing on social media and during a recent campaign rally in Texas.
“I would certainly not be opting to have this flimsiest of the cases go first,” Diamond said.
The indictment already has rallied Trump’s supporters, both at the grassroots level and those holding public office. The reaction to Thursday’s indictment has exposed the deep political rifts that have increasingly polarized the country since Trump’s rise within the Republican Party.
Kathy Clark, a retired police officer from suburban Palm Beach County, stood alongside the road outside Trump’s Mar-a-Lago estate in Florida after the indictment news broke, holding a “Trump Won” banner. Clark, dressed in a red, white and blue cowboy hat and vest, said the New York indictment will backfire.
“People who were on the fence are going to see how the government has politicized the judicial system,” she said.
Trump has promoted the idea that the investigations are partisan and intended to undermine his campaign as he embarks on his third bid for the White House. On his social media site, the former president cast prosecutors involved in the investigations as the ones endangering democracy.
Other supporters lined up quickly behind him, including West Virginia Attorney General Patrick Morrisey, a Republican, who called the indictment “a political witch hunt and a political prosecution. And the only reason they’re doing this is because they’re scared. They know that they can’t beat him at the ballot box. That’s why they’re resorting to these terrible tactics.”
Polls have shown that a majority of Republicans still support Trump’s false claim that the 2020 presidential election was stolen, suggesting they already believe he has been wronged by the system even though Biden’s win has been affirmed in multiple reviews, recounts and audits in the key presidential battleground states.
Trump’s attempts to overturn those results amid false claims of widespread fraud are at the heart of two other ongoing investigations, including his role in trying to halt the certification of the election results and in the run-up to the violent attack on the Capitol. A special prosecutor also is looking into Trump’s retention of classified documents at his Mar-a-Lago estate, an investigation that could hold the greatest legal peril for the former president.
A separate investigation in Georgia’s Fulton County, which includes Atlanta, is looking into the pressure Trump and others exerted on state officials to overturn the results of the presidential election there. The investigation began after a phone call in which Trump urged Georgia’s secretary of state to “find” enough votes to overturn Biden’s win.
The payment that Trump's lawyer, Michael Cohen, made in 2016 to cover up an alleged sexual encounter with Daniels is the one that least involves an attack on democratic norms. But it is the detail that most easily lends itself to Trump’s contention that he is being attacked for partisan reasons.
John Bolton, Trump’s former national security adviser, said on CNN recently that the question is what happens after the indictment. If prosecutors fail to get a conviction, “I think the historians will look back and say that is the act that re-elected Donald Trump president.”
Diamond, the Stanford expert, said despite his nervousness of the New York case moving ahead first, it will not stop the others.
“The other stuff is not going to simply evaporate, and I think for the purpose of the defense of our constitutional system and the defense of the rule of law ... those are the ones that I think should carry the most weight in the public mind,” he said.
Roscoe Howard, a former U.S. Attorney for the District of Columbia, said prosecutors in New York are aware of who they are dealing with and the turmoil that will follow. But he said prosecutors aren’t focused on public opinion or the political consequences of a case.
Their concern is not about other investigations, but whether their case is ready to go to court, Howard said.
“There’s not a prosecutor in this country who will take a case to trial that they think they are going to lose,” he said. “They just don’t do that.”