Indicting Trump Poses Bad News for Both Parties

Always bet on Democrats overplaying their hand.

There are varying views in Republican and conservative circles about Donald Trump’s prospects. I am firmly in the “he can’t win” category. The indictments and other legal proceedings against him have paradoxical surge and tail effects: They help Trump in the short term. His base goes ballistic, Republicans who are less enthusiastic about him become incensed over how unabashed the Democrats’ politicized law enforcement has become, and other GOP candidates are stuck in the mud — forced to talk incessantly about Trump’s travails rather than their own platforms, so they can’t get traction. 

Nevertheless, over the long haul, the accumulated weight of the legal proceedings will weigh Trump down, regardless of how the legal jeopardy plays out.

Does this sink his candidacy? I say no, but only because I regard Trump’s 2024 bid as sunk already, from the moment it pushed away from the pier.

This is not ad hominem. It’s math. At his high-water mark — before the COVID cluelessness, the stop-the-steal coup attempt, the Capitol riot, and the ensuing, ceaseless fusillades of denial and “Truth Social” lunacy — Trump topped out at between 42% and 46% support in the electorate. Even with all the tremendous advantages of incumbency, he couldn’t get above 47% in 2020. 

That is, even before all the lunacy that began in 2020 and has never stopped, even before the indictments and civil complaints began rolling in like a relentless tide, a solid 54% of the country was voting against Trump. It tells us that his 2016 win was an inside-straight, a statistical miracle that won’t ever be repeated — and one that could not have happened had Democrats not nominated their worst candidate in modern times, the scandal-tarred, deeply unpopular, inept Hillary Clinton.

My point is that, even before Trump’s latest indictment by Biden special counsel Jack Smith, even before his first indictment by Manhattan District Attorney Alvin Bragg, even before the expected (in August) indictment by Fulton County prosecutor Fani Willis in Georgia, even before the just-concluded E. Jean Carroll sexual assault trial and the coming (in October) massive civil fraud trial brought against him by New York Attorney General Letitia James, Trump already was toast. 

He could not win in 2020 with 46%. Even before this array of criminal and civil lawsuits, his performance from the start of COVID through the continuing 2020 election shenanigans ensured that he would never see 46% again.

Is Joe Biden a calamity? Yes … but this isn’t about President Biden. It’s about Trump and what he can realistically expect. He had solid 54% opposition before Biden. What the Trump base and the “Trump could pull this off” contingent don’t seem to grasp is that this 54% unmovable opposition is now likely closer to 60% nationally.

They’re not seeing it at present because (a) it’s not as obvious in the GOP primaries, where Trump supporters punch way above their weight, so Trump looks stronger than he is, and (b) most Americans don’t pay attention to politics until it gets close to Election Day, so the polls are not yet reflecting the effect of the barrage of messaging Democrats will aim at Trump in autumn 2024 if Republicans are daft enough to nominate him.

The Trump devotees and more reluctant “Trump could pull this off” camp are telling themselves that Biden’s sheer awfulness will get Trump out of this abyss. That’s nuts. 

It is undoubtedly true that in this nation of 330 million people, many of them extraordinarily gifted, if the best the political system can do is give us a choice between Joe Biden and Donald Trump, many people will reject the choice. But they will register their objection by not voting. They are not, as the Trump fans imagine, going to flock to the polls, despite their misgivings about Trump, to vote against Biden — not nearly, in any event, in the kind of numbers Trump would need.

So how have Democrats overplayed their hand? 

By gratuitously indicting Trump on Espionage Act charges, Biden’s Justice Department has now assured two things that are poison for him. 

First, every single day, Trump will be pointing out — as only he can — that Biden is guilty of violating the same statute, the Espionage Act (Section 793). 

The Biden Justice Department’s special prosecutor has politicized his indictment to try to distinguish the two cases: Trump is apparently being charged under the Espionage Act section (Subsection d) that prohibits willful retention of national defense information. The media-Democrat complex will chirp that Biden’s classified information misadventures do not reflect willfulness. I’m not sure that’s true. 

Biden, for example, has for decades illegally possessed classified documents dating from his time in the Senate; senators are not allowed to remove classified documents from the Capitol Hill SCIF, so his possession of such documents at home cannot be a result of negligence — he must have done it on purpose. But that’s beside the point. Biden is as patently guilty of violating the “gross negligence” provision (Subsection f) as Trump is of violating the “willfulness” provision. They’re both crimes, carrying potential 10-year penalties. And any military official subordinate to Commander-in-Chief Biden would be prosecuted for what Biden allegedly has done. If Trump has been indicted, Biden should be indicted, too.

Second, why hasn’t Attorney General Merrick Garland appointed a special counsel for the Biden family influence-peddling probe and its Hunter Biden tax-evasion and false-statements subset? There was no need for Garland to appoint a special counsel for Trump because there was no conflict of interest. Garland’s appointment of Smith was political, not legal. The attorney general wants to pretend that Biden and the Biden Justice Department have nothing to do with the decision to indict Trump, so he brought Smith in as his cut-out. 

Yet there is a raging conflict of interest in the Biden Justice Department’s investigation of President Biden and his family. Despite that, Garland refuses to act, even as it becomes more blatantly apparent day after day that the Biden Justice Department is burying the Biden probe by inaction — exactly as one would expect from an administration that politicizes law enforcement.

Every day, Trump is going to be pressing that point, which will inevitably invite more public inquiry into the Biden family business — the last thing Democrats want the country to get interested in.

In the end, I don’t believe that will help Trump get elected. But it will ensure that Biden is not reelected either.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at National Review Institute, contributing editor at National Review, and a Fox News contributor.