David Orentlicher
Between March and August, prosecutors indicted former President Donald Trump four times for alleged crimes. In September, New York civil court Judge Arthur Engoron ruled that Trump had committed business fraud when seeking financing for his real estate deals, and on Friday Engoron imposed his penalties for the civil offenses: The judge ordered Trump to pay $355 million in damages; he also banned Trump from serving as an officer or a director of a business in New York for the next three years.
While Friday’s ruling seems like a significant setback for Trump, it more likely will end up as a defeat for the legal system. So far, the prosecutions of Trump have been followed by an increase in his support and a decline in public trust in the legal process, at least among Republicans. From July to December, Trump’s support among Republican primary voters rose from 54% to 64%. Last month, Trump trounced his competition in the Iowa caucuses, more than doubling his 2016 Iowa vote, and he also cruised to a first-place finish in the New Hampshire primary. Even among all Americans, Trump seems to be doing better. In Wall Street Journal polls, President Joe Biden’s 2 point lead in December 2022 flipped to a 4 point Trump lead this past December.
It is essential to hold Trump accountable for his misconduct, and he may ultimately serve time in prison once courts decide his four criminal cases. But so far, public officials have done more damage to the law than to Trump, pushing too far in their efforts to punish the former president. Instead of leading many voters to distrust Trump, the legal cases are leading voters to distrust the legal system. After Special Counsel Jack Smith indicted Trump in August for his efforts to overturn the 2020 presidential election, an ABC News poll found that 46% of surveyed Americans believed the charges to be politically motivated, with only 40% not thinking so. In June, more than 60% of Americans polled said that they thought political motivations explained Smith’s indictment of Trump on charges of mishandling classified documents. A majority of Americans similarly told pollsters that they did not see a legal basis behind charges related to the January 6, 2021, attack on the US Capitol or hiding hush money payments to cover up an extramarital affair.
It’s important for the public to feel that the Trump prosecutions are legitimate. It’s especially important for those who will be rendering verdicts on Trump. But some of the prospective jurors in his damages trial for defaming E. Jean Carroll said they believed that Trump is being treated unfairly by the legal system. Other polls also reveal worrisome trends. In Gallup’s 2022 and 2023 surveys about major societal institutions, public confidence in the US Supreme Court – which will have the final say on whether Trump should serve time, be disqualified from running again for the presidency or go unpunished – plummeted to new, troubling lows. It is essential that, whichever way the courts decide the Trump cases, the public thinks he got a fair shake by the legal system. But in their zeal to pursue the former president, prosecutors and judges are diminishing public trust by pushing the limits of the law.
In the business fraud case, for example, Engoron has stretched the law in problematic ways. When he concluded that the former president had fraudulently inflated his net worth in financial statements to banks and other lenders, the judge initially ordered that Trump’s New York companies be dissolved. Moreover, his order applied to all of the companies, not just the ones implicated in the wrongful statements.
But according to experts in New York law, the applicable statutes only allow Engoron to punish the companies charged with fraud, and even for those, it doesn’t give Engoron the authority to shut the businesses down (which may explain why an appeals court placed the dissolution order on hold, and why Engoron did not incorporate dissolution into Friday’s judgment). Other cases also are troubling. And in disqualifying Trump from the primary ballot, the Colorado Supreme Court and Maine secretary of state relied on discredited punishments of slavery opponents, advocates for workers’ rights and war protesters. For many Americans, all of these distortions validate their sense that the Trump prosecutions are partisan. As they erode public trust, public officials solidify Trump’s support. It is not surprising that Trump seems to be benefiting from his legal troubles. Trump regularly mobilizes his constituency by claiming that his prosecutions are politically motivated and designed to shut him and his supporters down. Stretching the law in dubious ways only reinforces those claims.
To be sure, law enforcement officials should not stay their hands just because Trump might exploit efforts to hold him accountable. But officials need to act much more scrupulously in their efforts. When prosecutors or judges overreach, they play into Trump’s strategy of victimhood, increasing his chances for reelection and compromising the public’s faith in our legal system.
