By Ankush Khardori
Mr. Khardori is a former federal prosecutor.
You were probably not alone if the news of Donald Trump’s indictment seemed slightly strange: How could something so big — the first criminal indictment of an American president — seem so small?
Mr. Trump was not indicted for his efforts to overturn the results of the 2020 election or for engaging in egregious financial fraud to increase his wealth or even for allegedly obstructing the special counsel Robert Mueller’s Russia investigation, which many once thought was the best avenue prosecutors had to ensnare the former president.
Instead, the Manhattan district attorney, Alvin Bragg, a Democrat, and his team of prosecutors have brought the country back six and a half years, to the final weeks of the 2016 election, when Mr. Trump paid the adult film star Stormy Daniels to prevent her from going public with a story about an affair she said they had while Mr. Trump was married. (The details of what the indictment contains remain unknown — its contents will be unsealed after Mr. Trump turns himself in, most likely next week — but it is expected to charge the former president with falsifying business records of the payment, disguising the payoff as routine legal fees.)
It is far from clear how this case will end. No matter what the precise charges are, the prosecution will raise unusual and arguably novel legal issues. Michael Cohen, who seems to be the key witness, may not be credible enough to persuade a jury to convict Mr. Trump, even in Manhattan. And Republicans are already mounting an effort to frame Mr. Bragg as a political hack who is weaponizing his office to take down the former president on behalf of Democrats.
But at least one thing seems clear: Mr. Bragg may have been the first local prosecutor to do it, but he will probably not be the last. Every local prosecutor in the country will now feel that he or she has free rein to criminally investigate and prosecute presidents after they leave office. Democrats currently cheering the charges against Mr. Trump may feel differently if — or when — a Democrat, perhaps even President Biden, ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make a name for themselves by prosecuting a former president of the United States.
The vast range, breadth and diversity of criminal laws throughout the country provide plenty of opportunity for mischief. As the attorney general and future justice Robert Jackson observed more than 80 years ago, “A prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” He added, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him.”
For instance, Hunter Biden is accused of similar conduct — including whether he and other family members properly accounted for their business proceeds — which has attracted the attention of federal investigators and congressional Republicansand could support an investigation under Delaware laws that prohibit falsifying business records and filing false documents with the state.
Delaware is a solidly Democratic state, so that particular possibility seems unlikely, but elected prosecutors in large Republican locales could find similarly creative ways to target the family of a Democratic president, particularly if the president, his spouse or another family member has national or international business and financial dealings in the state. Florida and Texas, for instance, have broad criminal laws on the books that prohibit forms of financial and business improprieties, including criminal fraud statutes that a prosecutor could claim were violated if there is even a suggestion that a president misled someone in the state during a financial transaction or that a president used a financial institution in the state for some questionable dealing.
Say he ran a business or nonprofit that arguably inflated its financial condition in order to secure office space. That could form the basis of an investigation into whether he committed a crime by fraudulently obtaining property or credit. And if someone like the Texas attorney general, Ken Paxton, a Republican who is no stranger to accusations of illegal and unethical conduct, could orchestrate such an effort, is there any serious doubt that he would try it?
Substantial legal impediments stand in the way of prosecutors who might want to charge a former president for official actions, but there are plenty of areas that remain open for scrutiny even during the presidency. Every president travels throughout the country campaigning, fund-raising and making stops for official business. Say a candidate instructs the motorcade to speed to an event and it results in a deadly car accident or he directs organizers to let people into a venue that is over capacity and someone loses his or her life, crushed in the crowd. Are we later going to see an investigation and prosecution for involuntary manslaughter?
A statute on the books in Florida makes it a crime to engage in libel. If Mr. Biden leaves office and criticizes Mr. Trump or another prominent Floridian in the state in writing, will he be vulnerable to prosecution?
These possibilities are impossible to fully anticipate. After all, Mr. Trump probably never considered that paying an adult film star to stay quiet using his company’s money would make him vulnerable to prosecution in Manhattan. But to the extent that there were principled objections to local prosecutors pursuing presidents, they will be significantly less compelling or credible in the future, particularly coming from Democrats.
It didn’t have to be this way. The most obvious and sensible approach, at least for Mr. Biden, would have been to instruct his attorney general to engage and coordinate with Mr. Bragg and Fani Willis, the district attorney investigating Mr. Trump in Fulton County, Ga., assuring them that the Biden Justice Department would conduct thorough criminal investigations concerning Mr. Trump’s business dealings and his efforts to overturn the 2020 election results. (Federal prosecutors routinely ask state and local prosecutors to step aside when the underlying facts implicate federal laws or federal interests, and they almost always agree.) In doing so, Mr. Biden could have not only alleviated the legal uncertainty and controversy that currently surrounds Mr. Trump; he also might have protected himself and his Democratic successors from retribution. But the president does not appear to have taken those steps, leaving both prosecutors with the license — and arguably the imperative, given their responsibilities to their constituents — to pursue Mr. Trump for any questionable conduct in their jurisdictions.
There is probably not much that Mr. Biden or other presidents can do to mitigate these risks, except perhaps to try to limit as many of their unofficial activities — where they live, vacation and conduct business or nonprofit work — to states and localities that are safely and consistently run by the same party. But that, too, is a bleak prospect: an America where presidents avoid states where people disagree with them. In the long run, it might also limit the ability of the Democratic and Republican Parties to groom presidential contenders from states that are not safely blue or red.
For now, both parties would be well advised to keep the temperature down surrounding Mr. Trump’s indictment, at least so that their constituents do not convince themselves that this should become a part of the standard political tool kit. If Mr. Bragg is, as expected, pursuing a case that revolves around falsified business records, the charges against Mr. Trump will be modest; they will neither prevent him from retaking the White House if he wins re-election nor result in his extended imprisonment if he is convicted. We should all let the case proceed through the courts until it reaches an orderly resolution and, whatever the result, try to chalk it all up to the fact that Mr. Trump never fails to generate strange and unique situations.