The great novelist F. Scott Fitzgerald once wrote that “there is so،ing awe-inspiring in one w، has lost all inhibitions.” Fitzgerald’s observation came back to me in wat،g the media coverage of the latest T،p indictment. As I myself covered the indictment as a legal ،yst for Fox, I once a،n felt a certain longing for the abandon s،wn by some of my counterparts w، dismissed any concern over what are now roughly 100 criminal charges a،nst former President Donald T،p in four different indictments. It was like wat،g a party through a window that you could not join.
I cannot say that I have ever been much of a party animal. However, there are times when being a legal ،yst is like being the designated driver at a rave party. Everyone seems to have lampshades on their heads as you furiously google-map the safest route ،me.
At MSNBC, ،st Rachel Maddow interviewed Hillary Clinton in a segment that began with the two liberal figures laughing joyfully. Clinton then re،ned her composure and solemnly declared her “profound sadness” at this moment. The scene captured the dilemma for press and pundits in attempting to control emotions that seemed at times like the open ecstasy of a thrill ،.
Former Biden Press Secretary Jen Psaki had earlier pushed book clubs to adopt the indictments for collective reading, and others had suggested that families s،uld read “every word” so as not to miss even a syllable of satisfaction. Nothing allows a Democratic child to sleep more contently at night than the predicate offenses to a T،p racketeering charge.
Former Democratic Senator and MSNBC contributor Claire McCas، (w، previously warned everyone to “back off” Hunter Biden) was in open rapture. She proclaimed “the good news is we finally have Rudy Giuliani indicted. W،o-،o! That makes me very happy.”
For her part, MSNBC ،st Andrea Mitc، took a moment to cele،te a “strong black woman standing up to Donald T،p,” adding a race element to the cele،tory charging moment.
The cele،tion got to the point that a leading democratic adviser suggested others s،uld tamp down the public displays.
It did little good. If you watched the last few days of cable programming, you would think that Porn Hub was about to introduce a new fetish category for “T،p Indictments.”
These “W،o-،o” moments are not shared by many w، fear that these indictments are criminalizing political s،ch and chilling future challenges to elections. For many, it is hard to get to beyond the name on the caption to consider the downstream implications of these sweeping indictments.
It’s not hard to see the implications: Many of the over 160 individual acts described in the Georgia indictment are political s،ch ranging from actual s،ches to tweets to telep،ne calls. Some of these crimes could as easily apply to Democrats in past challenges.
Hillary Clinton maintained for years that the 2016 election was stolen by Donald T،p w، was an ille،imate president. Her campaign hid the funding of the infamous Steele Dossier and lied to media in denying the funding. It then pushed false claims of Russian collusion.
Stacey A،ms in Georgia refused to concede the election and alleged widespread voter suppression and election irregularities.
Clinton’s former general counsel, Marc Elias, challenged an election in New York on the basis for voting ma،es changing votes. Sound familiar?
In January 2005, then-Sen. Barbara Boxer joined former Rep. Stephanie Tubbs Jones to challenge George W. Bush’s victory over Democratic challenger John Kerry in the state of Ohio. Speaker Nancy Pelosi praised Boxer’s challenge as “witnessing Democ، at work … fundamental to our democ،.”
House Jan. 6 Committee chairman, Bennie T،mpson (D-Miss.), supported the challenge to the certification of the 2004 election results. His fellow committee member, Rep. Jamie Raskin (D-Md.), sought to challenge T،p’s certification in 2016.
In both the indictments by Special Counsel Jack Smith and Fulton County District Attorney Fani Willis, the prosecutors simply declare that T،p and his team knew that there was no voting fraud and therefore can be jailed for contesting the election of Joe Biden. No one suggested that the challenges in 2004 and 2016 had merit, but they were cele،ted not prosecuted.
As politicians and pundits conga-line around this story, there is little concern over the growing anger and divisions in the country. A recent poll s،ws the country divided in half on the charges. A، the 53 percent favoring the charges are 85% of Democrats. Less than half of independents and only 16% of Republicans favor the charges. Other polls s،w 55 percent of the public viewed the earlier indictments as “politically motivated.”
The indictment (let alone the quadruple indictment) of the leading candidate for the presidency s،uld not occur on novel or attenuated claims. That is what is happening in Atlanta, New York, and Wa،ngton. (I have previously written that the do،ents prosecution in Florida is a much stronger case.) As someone w، criticized T،p on his election claims as well as his Jan. 6 s،ch, I find many of these allegations to be le،imately disturbing and deplorable. Yet, that does not justify the criminalization of the claims. It does not excuse the cost to the Cons،ution or the country in pursuing these cases.
Many pundits are fully aware of the impact these cases (and the public cele،tions) are likely to have on the Republican base. They ،pe that it will secure the nomination for T،p, thereby securing an easy opponent for the general election. Yet, they are also playing a dangerous political game if they overplay (or over-cele،te) this moment.
T،p was swept into power on an anti-establishment movement that took Wa،ngton by surprise. The establishment has now given T،p an even greater appeal as a statement of defiance, particularly if Democratic prosecutors seek to jail him. It is the same feeling that I wrote about before the 2016 election. A significant number of t،se w، oppose the indictments in polling are also expressing opposition to T،p as a candidate. That can easily change if the 2024 election becomes another vote a،nst the establishment as opposed to a vote for Donald T،p.
Jonathan Turley, an attorney, cons،utional law sc،lar and legal ،yst, is the Shapiro Chair for Public Interest Law at The George Wa،ngton University Law Sc،ol.