Claire Finkelstein on Trump’s indictment

Finkelstein, the founder and faculty director of the Center for Ethics and the Rule of Law, discusses how this case is a test of America’s institutions, the rule of law, and the world’s oldest democracy.

Trump supporters hold Trump 2024 flags and campaign signs in shadow as the sun sets.
Supporters carry flags as they protest the news that former President Donald Trump has been indicted by a Manhattan grand jury, Thursday, March 30, 2023, near his Mar-a-Lago estate in Palm Beach, Florida. (Image: AP Photo/Rebecca Blackwell)

Donald Trump has become the first former president in U.S. history to face criminal charges. What does this unprecedented moment portend for America’s democracy and what can people expect in the coming months?

To answer those questions and more, Penn Today spoke to Penn Carey Law professor Claire Finkelstein. Finkelstein is the founder and faculty director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania’s Annenberg Public Policy Center.

How is Trump’s indictment a test of the country’s institutions and the rule of law?

The most fundamental principle of a democracy is that everyone is equal under the law. That is the principle that the Supreme Court affirmed in the case of Trump v. Vance in 2020 and the principle that it affirmed with respect to other presidents in the past. As in the cases of presidents Bill Clinton and Richard Nixon, the country once again faces a profound test of the rule of law. 

The critical question the country now faces is not whether the former President, Donald Trump, is guilty or innocent of the charges brought by the Manhattan DA. The real question is whether the United States has the fortitude to hold a former president to the four corners of a required legal process in the same way that the country would hold any other citizen. In the present heated environment, it is not yet clear that Alvin Bragg’s office will be able to conduct a full and fair trial of Donald Trump based on the indictment. The challenges are many.

First and foremost, Trump has already been doing everything he can to obstruct the administration of justice and to interfere with the ability of the court to conduct an orderly trial, in a way that is not dissimilar to his interference with the certification of the presidential election on Jan. 6, 2021. Second, some of Trump’s supporters who are members of Congress are claiming that Alvin Bragg’s office is weaponizing prosecutorial powers, and they are threatening to use their congressional powers to attempt to derail the prosecution by launching an investigation of the Manhattan DA. Third, even if Trump and his supporters do not succeed in derailing the process, it is not clear that Bragg will manage to stay the course, given the fact that his life has been repeatedly threatened, and that the Department of Justice has not to date indicated that it would back up the Manhattan DA against such threats. And finally, the case presents the first impression challenge of a highly publicized criminal trial where the defendant is also a candidate for president. He will now be under indictment and likely undergoing trial throughout much of his campaign and could conceivably end up completing that campaign from prison.

Cases involving defendants with enormous notoriety are already difficulty enough to try. These additional factors, however, may make the case near impossible to see through to completion.

Perhaps the greatest complicating factor of all, however, is how the New York trial may interact with other indictments that could soon be brought in other jurisdictions. Recent reporting suggests that Jack Smith, the special prosecutor investigating possible federal crimes, has new evidence suggesting that Trump personally searched the boxes containing classified documents in Mar-a-Lago and may have acted to conceal their whereabouts, actions that would implicate him in several significant federal crimes. We may therefore see an indictment under the federal Espionage Act in the very near future. In addition, Smith may recommend that charges be filed by the DOJ against Trump for either seditious conspiracy or insurrection. An indictment for the latter crimes would be particularly significant because, if convicted of either of those crimes, Trump would be unable to assume federal office again under Section 3 of the 14th Amendment, which was a post-Civil War amendment to the U.S. Constitution intended to prevent Confederate politicians from running for office on the grounds that they had betrayed the country.

As my co-author Richard Painter and I wrote in a Washington Post Op-Ed over the summer, the country emerged from the Jan. 6 Committee hearings with significant evidence of the appropriateness of the latter two charges, and polls suggested that those hearings were highly effective in swaying public opinion. Yet seven months later, no federal indictment has been brought. To my mind, it would have been preferable if the feds had led this potential wave of indictments rather than having Alvin Bragg out there on his own with a comparably weaker and less significant charge. Yet now that Bragg has proceeded, the Department of Justice must give him their full support, since a derailed prosecution based on the defendant’s own obstructive tactics would be devastating for the country.

Finally, there may be an indictment from the prosecutor in Georgia for efforts to subvert the 2020 election. Whatever potential for violence we see in New York as a result of the Manhattan DA indictment, we could see that 10 times over in Georgia, and we could see that 10 times over due to any federal charges as well.

Will there be the strength and resilience in the system to bring the charges that need to be brought in these other jurisdictions, if, indeed, the evidence that those prosecutors have appears to warrant them?

What does this indictment mean for our democracy?

As I have said, the core concept in a democracy is the rule of law, and the rule of law is, in the most fundamental sense, what democratic governance is all about. In a democracy, it’s the people that are sovereign, but our framers early on recognized that simple majority rule is not the best way to ensure that popular sovereignty is fully protected. Instead, the framers gave us a system whereby the various branches of the federal government, as well as the federal versus state government, would serve as checks and balances on one another.

When a president is able to commit crimes in office, and particularly crimes oriented towards retaining his grip on power, and where a president loses a bid to become reelected and commits crimes to reverse the effects of a fair and democratically run election, we fail to address those crimes at the peril of our democracy. Holding presidents to the letter of the law should be the first line of defense for protecting democratic governance. As I argued with Richard Painter in an article in the Penn Journal of Constitutional Law, a president who would violate the criminal law to stay in office could distort every other mechanism of accountability in our system, including voting laws and the rules governing impeachment. If we do not hold presidents who commit crimes responsible for their actions, we are in serious danger of sliding into autocracy. 

Impeachment has become a dead letter. Particularly after the Jan. 6 attack on the Capitol building and the failed impeachment that followed it, we can only conclude that impeachment has become so politicized a process that is unlikely ever to result in the removal of a president. The need for impeachment could typically arise in the case of a president who has lost an election, and who therefore only has weeks or months, or even days, to serve in office and seeks to extend their term to a second term. Such a president has nothing to lose by risking actions that could result in mere impeachment because all that would happen is that they'd be removed from office a few weeks sooner than they would otherwise be. The availability of the criminal process for a president who would falsify the electoral rules to remain in office may be the final backstop to erosion of the rule of law.

What is the most important thing for people to understand about this moment?

That any justice system—whether it’s the Manhattan DA’s office or the Justice Department or the Georgia DA—must be above politics if it is to function properly.

That means that the decision to prosecute cannot be politicized but also that a decision to refrain from prosecuting cannot be politicized. It cannot be the product of partisan politics and cannot be governed by the defendant himself who says that this is a witch hunt and that it’s the federal government being weaponized and so on. 

The indictment of Donald Trump shows us how important it is for the public to have faith in the federal, state, and local systems of justice. It is critically important that this process play out in the way that criminal trials ordinarily do. There are reasons to be skeptical of certain aspects of our justice system for sure. There is a long history of racial prejudice in the criminal justice system, one that has been documented through numerous studies, court decisions, and the long, lived experience of those who have been victimized by the injection of racial politics into an adversarial system of justice. But a white, wealthy, and famous defendant such as Donald Trump is not likely to be treated unjustly in the administration of justice. He can afford good lawyers, and he will no doubt put up a robust defense that will assure his presumption of innocence will be respected. The country should sit back and let the system of justice take its course.