Time is running out for administrators of justice in the American system—almost all political appointees—to file charges against presidential aspirant Donald Trump for his various acts of indiscretion, omission, commission and purported criminality as a public servant and businessman. Hence the sudden rash of charges—which have no precedent in the United States of America’s history—against its former president. Trump has been indicted on 71 counts—37 in Miami on June 13, and 34 earlier in New York. More may be in the offing in other cases elsewhere.
Because it is a convention and not a rule, it is not very well known that by tradition, prosecutors in the US do not file charges against candidates running for national office during the time frame of six months before an election. It is to avoid the impression of political persecution by the party occupying the White House or subversion of the high standards of democratic values which America boasts of.
With political polarisation destroying several hallowed American values in recent years, many such conventions have been given the go-by. During Trump’s four-year presidency, there were attempts to subvert the fair dispensation of justice and overturn the centuries-old traditions of the US Department of Justice to suit the 45th US president’s selfish interests and dubious political ambitions.
So, when President Joe Biden appointed Merrick Garland as Attorney General, Garland pledged on day one to free judicial investigations from political interference. Garland was a victim of Republican bias and sectarianism after President Barack Obama nominated him as a Supreme Court judge in 2016. Although no previous Supreme Court nominee in US history had more judicial experience than Garland at the federal level, Republicans, who controlled the Senate then, flatly refused to hold confirmation hearings for his appointment. His nomination expired when Trump succeeded Obama, and a new US Congress was sworn in the following year.
Although investigations against Trump’s alleged misdeeds as president and alleged infringement of laws as a corporate honcho began in Biden’s first year itself, Garland applied the brakes on them in the second year. As a victim of Republican highhandedness and committed to upholding the independence and integrity of investigating agencies, Garland issued an important order in May 2022. “Prosecutors may never select the timing of public statements, investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election,” the order said. “Partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”
Its result was that for six months until the midterm Congressional elections were held in November last year, all potential criminal or civil legal actions against Trump were effectively frozen. Now that Trump is a presidential aspirant in 2024, the Department of Justice has less than a year to go after him. Hence the rush to indict him in one case after another in quick succession. During the 2016 presidential election season, the then Federal Bureau of Investigation Director James Comey attempted to reduce the six-month pre-poll window to 60 days. He publicly announced reopening some investigations against Democratic candidate Hillary Clinton shortly before polling. By issuing his May 2022 order, Biden’s Attorney General restored the six-month time frame as a convention. It is still not in any law.
When Trump was indicted in Miami on June 13, only a few hundred people turned up at the courthouse to show their support, although he alleged that political persecution was behind the cases against him. In the run-up to this second indictment, Trump had hoped to mobilise at least 50,000 supporters from news stories his aides were planting in the media. To compensate for the small crowd, on the way home from court, the indicted former president made an impromptu stop at a Cuban restaurant, which is popular among anti-Communist émigrés who fled the rule of the Castro brothers. There he spoke the language that such émigrés love to hear. He said about his latest indictment: “If the Communists get away with this, it won’t stop with me. They will not hesitate to ramp up their persecution of Christians, pro-life activists, parents attending school board meetings, and even future Republican candidates. I am the only one that can save this nation.” The speech showed how far-removed Trump has become from reality in his fantasy world. But he is still the front-runner in his party for the Republican presidential nomination next year.
As formal, prosecutorial accusations against the former president get progressively more serious, Republican heavyweights are reluctant to come out totally in his support. During the June 13 court appearance, Trump was indicted for unlawful possession of national defence secrets, classified information about US nuclear capabilities, and obstructing justice. He could go to jail for 10 years if convicted.
Indian American Nikki Haley, who Trump appointed as his Ambassador to the United Nations in New York, has mooted a compromise proposal for a presidential pardon for Trump to stop the political bloodletting harming the nation. The proposal will most certainly not find favour with Biden, who has to issue any such pardon. For Haley, who is also seeking the Republican White House candidacy next year, the proposal is a face-saver from the wrath of the party faithful, who think she is ungrateful for everything Trump did for her as president. Florida Governor Ron DeSantis, second after Trump in popularity as Republican presidential hopeful, has carefully skirted the pardon issue because he may be the one to pardon Trump if he becomes president. Instead, he promises to completely restructure the justice system if he wins the White House.
In many US states, it is not necessary to be registered in the electoral rolls as a Republican voter to take part in the party primaries, which choose candidates. During last November’s midterm elections, many Democrats used this loophole and voted in the Grand Old Party’s primaries in support of extremist candidates endorsed by Trump. This had the effect of fence-sitting voters and the undecided electing Democrats, especially to the US Senate. The spectacle of the criminal trial of a former president could mean this could happen again, to Biden’s advantage.
K P Nayar
Strategic analyst