It took an accountant to nail Al Capone, as they say. But Donald Trump is not a 1920s Chicago mafia boss. He is a former and possibly future US president whose chances may even be helped by being indicted on relatively minor charges.
The prospect that Manhattan’s district attorney could briefly handcuff Trump — possibly in the next day or two — has so excited his detractors that it seems to have triggered a collective loss of judgment.
Here is another way of looking at Trump’s relationship with the law. If Trump had an indictment of choice, it would be for something trivial, such as misreporting the hush money that he paid to a porn star with whom he had had an affair. Neither the alleged offence — fiddling with business expenses — nor the original cause (having a fling with an adult actress) would hurt Trump in the eyes of his supporters. They have overlooked far worse. Most of them admire Trump for his chutzpah.
The more trifling the charge sheet, the better Trump’s purpose is served. It would reinforce the Maga conspiracy theory that ideological prosecutors working for the deep state are determined to derail Trump’s 2024 campaign.
You do not need to believe Trump’s boast that his arrest would trigger mass protests, which seems unlikely, to see this as the kind of encounter that Trump relishes.
The other allegations against Trump are in a different league. One, which is being heard by a grand jury in the state of Georgia, is that Trump attempted to overturn the results of a presidential election. Another is that he incited protesters to violence and even sedition in the January 6 2021 storming of Capitol Hill. A third is that his business serially defrauded the taxpayer of what he owed. Yet another is about lying to the FBI about hoarding highly classified material at Mar-a-Lago.
These claims are at the same time very serious and easy to intuit. Neither is true of the accounting behind the Stormy Daniels pay-offs.
The law is the law: it seems plausible that Trump did commit a felony over the hush money. But the law is also an ass (an English saying that refers to stubborn mules rather than backsides). It is as though the International Criminal Court were to issue an arrest warrant for Vladimir Putin on the charge of shoplifting, rather than abducting thousands of children to Russia.
No prosecutor weighing up the stakes should ignore the impact on public opinion. There are plenty of non-Maga floating voters who would see such a move as over-reach.
Trump’s Maga base is as potent as ever. Had it faded, Republican bigwigs from Kevin McCarthy, Speaker of the House, to Mike Pence, the former vice-president, would not be echoing Trump’s diatribes about the looming indictment. Republicans who would rather walk over hot coals than once again see Trump become their nominee feel obliged to endorse his narrative. The Manhattan prosecutor, Alvin Bragg, is thus a corrupt partisan who is weaponising the legal system with fake charges. It is easier to sustain a critique of the rule of law this reckless on an indictment that potentially minor.
The grander question is whether Trump’s ultimate goal — to be returned to the White House — would be furthered. That is a much finer call.
It is almost too apt to be a coincidence that Trump’s first big election rally will be held in Waco, Texas, this weekend. Waco was the site of a notorious millenarian cult that ended in a bloody 1993 shootout with the FBI. The Branch Davidians were the late 20th-century equivalent to QAnon — a conspiracy cult to which Trump often tips his hat. Extremist support for Trump is both his weakness and his strength; it alerts the wider public to Trump’s recklessness yet is also a source of fanatical loyalty.
In the wake of a Trump indictment there would be few more fitting venues than Waco to test his appeal. That moment may never arrive, of course, or it could be delayed. While weighing the pros and cons, Bragg would be better off ignoring the Al Capone example and focus on the larger context of the red line he may be about to cross.
In addition to the strictly legal decision, other factors include the public’s likely reaction and the standing of the multiple other investigations into Trump.
Then there is the question of what Trump would want Bragg to do. The law might be better served by walking away. There is an old joke about the masochist and the sadist. When the masochist asks the sadist to hurt him, the obvious answer is: “No.”