The Real Problem With the Manhattan DA’s Case Against Trump

Relegating political questions to the legal system lets the former president cast himself as a victim.

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Robert Fix shows his support for Donald Trump near his Mar-a-Lago home on March 20, 2023 in Palm Beach, Florida. (Photo by Joe Raedle/Getty Images)

“There is hardly any political question in the United States that sooner or later does not turn into a judicial question,” Alexis de Tocqueville, the brilliant observer of American life, wrote. 

I’m pretty sure de Tocqueville didn’t have in mind scenarios like Donald Trump using a (now disgraced and disbarred) bagman-lawyer, Michael Cohen, to front hush money to a porn star and then recording the $130,000 reimbursement as “legal fees.”

But here we are. According to various reports—including panicked squeals in ALL CAPS from Trump himself—Manhattan District Attorney Alvin Bragg is preparing to indict Trump for exactly that. 

Some further context is in order. As shocking as this may sound, Trump has not always felt particularly constrained by the holy bonds of matrimony. He famously cheated on his first wife, Ivana Trump, with the woman who would become his second, Marla Maples. The sordid spectacle, often at his urging, was on display in the New York media. Then in 1998, a year before Trump’s divorce from Maples was finalized, he met Melania Knauss, a Slovenian model. After dating for several years, they were engaged in 2004, married in 2005, and in 2006 she gave birth to their son, Barron. 

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  1. Avatar photo
    Bono Vox

    Slick Willy Part Dah….LITERALLY, not seriously.

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  2. Clarity

    Goldberg: "The upshot from that chapter was that so long there is no provable violation of law, a president deserves to stay in office. Legalistic rationalizations become an excuse for not making moral or political judgments."

    No, the Constitution standard for impeachment hasn't been changed by the experiences with Clinton and Trump. Individual members of Congress have chosen their personal standard from impeachment to be: Did the President commit a crime?

    The Democrats stupidly only impeached Trump on one count in his second impeachment: Inciting an insurrection. The crime of incitement requires evidence that the inciter intended to incite violence. That made it trivial for many Republican Senators to simply say: I don't believe Trump intended to incite violence, making it trivial to vote not to convict.

    If Trump were accused of failing his oath to preserve, protect and defend the Constitution of the United States when he encouraged Pence to subvert the intent our election laws and rounded up fake Electoral Votes, it would not be so easy to take Trump's side. If Trump were accused of dereliction of duty when he stood by and did nothing to stop the attack on the Capital, he clearly was guilty. Are these failures AS PRESIDENT worthy of impeachment?

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  3. Rune485

    In fairness, Trump always casts himself as the victim, whether he’s refused to return classified dox, been convicted on 17 counts of tax fraud, or is facing the same charge that got Michael Cohen a three year sentence.

    I can understand being uneasy about prosecuting former presidents, but my sympathy for this one is non-existent.

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  4. Jknox1a

    Yes I've read everything that guy ever wrote and have published many books about his mind.

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  5. Renicksmith

    Am I mistaken or wasn’t it possible to like articles in a previous iteration of this website? The reason I ask: 1) like the vast majority of Jonah Goldberg’s pieces, I like this one; and 2) I rarely have much to say but would like to lend my meager support in some way.

    Thanks very much for this and other Dispatch offerings. I’m grateful.

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    1. Ken Motamed

      Since "liking" things is so social media, I'm glad The Dispatch has resisted that silly fad.

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  6. Jknox1a

    Fair enough. Being against that is not what I meant to convey. But if the crime is designed to and does hide a misdeed of a candidate that would have rightfully cost that candidate the election, should that crime not be charged? Lest the vote be tainted. The integrity of the process - that's what matters.

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  7. Jknox1a

    I say to you - Tocqueville would smile on getting this creep anyway we can - politically is better yes but why above all should a man running for president at the time not face charges even for a mere misdemeanor? Or felony if the theory of that is right? Must we be blind to the fact that the cover up helped propel this gentleman into the White House? I guess it's the biggest misdemeanor of all time.

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    1. Ken Motamed

      Wow! That's how much insight you have into Tocqueville's mind?

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    2. Avatar photo
      Juan J

      We’ve gone from handling political differences through debates, persuading voters, and earning their vote to distorting our opponents’ views, shouting down the opposition, and pressing charges against our political enemies. This is not a good trend.

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  8. Avatar photo
    Phil

    I hope that the upcoming election will not force me to choose between some really old dude whose policies I find for the most part somewhat acceptable but who maybe can’t remember what they are. Or another old dude whose behavior I find absolutely despicable and whose policies, if he could ever articulate them clearly, I mostly dislike. Or the third guy from Florida who is waging a culture war against anyone that isn’t the right kind of person but who has also done some pretty good things for Florida environmentally but seems like he could be pretty authoritarian but maybe not at the national level. I guess time will tell but I wish there were some other choices.

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    1. Ken Motamed

      Sounds to me like you will vote for whichever Democrat is on the ballot. Are you being coy?

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    2. Avatar photo
      JohnM.

      You can always write in someone who reflects your own principles.

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  9. Gerald Cuesta

    The photo says it all. The man has to be crushed and sent to the dust bin along with the likes of the fool flying that flag. He’s broken laws, he must be held
    accountable. His cult and the candy ass terrifieds making up gop leadership be damned.

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    1. Ken Motamed

      Well, there is that small thing about being equal before the law. If no one else would be prosecuted for these violations, neither should Trump, no matter how repugnant he is.

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  10. Drsterrett

    “De Tocqueville’s concern was that the relegation of political questions to the courts results in legalism overpowering other considerations. The “spirit” of legalism “infiltrates all of society” until “the entire people” acquire “the habits and tastes of the magistrate.”

    This is not a good reading.

    His concern wasn’t that “legalism” overpowers political considerations (he says nothing about legalism and even if you read him that way he is clear that such “habits and tastes” are a positive force). He writes from the chapter you quote: “The authority they (Americans) have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy.”

    He also has no qualms with political questions being resolved in courts; he championed judicial review and supremacy. “The peace, the prosperity, and the very existence of the Union are vested in the hands of the justices of the Supreme Court. Without them, the Constitution (narrative) would be a dead letter…” Here’s another gem: “the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.”

    As to “infiltrating all of society”, again he doesn’t say much less imply this is bad thing. (My translation is: “the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes.”) In other words, the attorney’s training in and concern for process ect. reaches all levels of society and this is a good thing.

    But, I agree (and I am sure Alexis would too) – Trump and Clinton are base and we are surrounded by the finest hypocrites.

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    1. Ken Motamed

      I very much doubt anyone with Tocqueville's insight and intellect would be fine with using the courts to advance policy. As just one example, consider the nuisance lawsuits climate activists are filing against power companies.

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      1. Drsterrett

        I agree - but that doesn't have anything to do Jonah's claim, my claim, or what De Tocqueville was writing about.

        In the chapter at issue, De Tocqueville waxed poetic about the American legal profession acting as a silent organic conservative check on the passions of the people. I read this is law school and read it again online to make sure my memory isn't totally going in my advancing age.

        De Tocqueville simply didn't turn around in the last paragraphs of the chapter and claim that legalism was/might be infecting the population and replacing / obfuscating moral judgement or raise any such concern. In fact, he made the opposite claim: the traits of legal profession in America seep into law making and the body politic and act as a check on the passions of the people.

        Jonah's point is interesting (a bit odd coming from a smart man that parses language and argues with and interviews lawyers/ professor types for a living) - just think he is really wrong on his reading of De Tocqueville here.

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