In the aftermath of every new indictment, Donald Trump and his supporters have swiftly launched attacks on the case. Their main argument revolves around the idea that prosecutors are treating Trump’s actions as criminal when they were simply part of normal political work. Florida Governor Ron DeSantis, for instance, referred to the recent indictment in Fulton County, Georgia as “criminalization of politics,” a sentiment he had expressed earlier regarding a previous indictment related to January 6th. Jenna Ellis, who was also charged in Fulton County, tweeted that the Democrats and the District Attorney were criminalizing the practice of law, likely referring to her involvement as a member of Trump’s legal team in contesting the 2020 presidential election. Trump himself, on his social media platform Truth Social, accused them of “criminalizing political speech” and a “total shutdown of democracy.”
However, these claims of criminalizing politics are nothing more than spin. They suggest that Trump and his associates were only engaged in typical political maneuvers. Nevertheless, the choice of this phrasing is revealing. It implies that politics is a cutthroat game where players fight aggressively for their own advantage, and if things get rough, that’s just part of the game.
But the reality is quite different. Attempting to overturn an election and hold onto power against the will of the voters is far from ordinary politics. Regardless of what Trump and other Republicans argue, there is a line that separates acceptable but ugly political tactics from potentially criminal actions. And according to prosecutors, Trump crossed that line.
During Trump’s presidency, discussions about “norms” – the unwritten rules that govern American politics and keep democracy functioning – became rampant. Many of these norms were largely unnoticed until Trump started breaking them, such as profiting from his business while holding office or pressuring the Justice Department to investigate his political opponents.
However, one key characteristic of norms is that they are not legal obligations. When Trump disregarded these collective agreements on how politicians, especially presidents, should behave, there were often no clear means to legally punish or restrain him. People learned that many things they believed were required by law, like presidential candidates releasing their tax returns, were actually just gentlemen’s agreements. The Washington Post even launched a podcast called “Can He Do That?” to address this recurring question. More often than not, the answer was “yes.”
The power wielded by the presidency is vast, and Trump proved adept at exploiting areas where checks and balances were weak. In many cases, the importance of these normative constraints became clearer precisely because of the reach of presidential power. For example, since the Constitution places few limits on a president’s authority over the Justice Department, it is crucial that presidents exercise self-restraint and refrain from demanding investigations into their enemies. Trump, as revealed in the Mueller report, did not adhere to this tradition.
Furthermore, the Justice Department’s internal guidance advises against indicting a sitting president, arguing that criminal charges would impede the chief executive’s constitutional duties. This policy shielded Trump from obstruction of justice charges during the Mueller investigation. Instead of the threat of prosecution, the only real constraint on a president’s actions, aside from impeachment (which Trump survived twice), lies in political norms. Perhaps tasting the extent of presidential power gave Trump a false sense of invincibility.
One of the norms that has underpinned American democracy is the shared belief that political candidates should accept the outcome of a free and fair election. If Trump had simply expressed his discontent with the 2020 election results on Twitter, it would have violated this norm but likely not been illegal. However, both Jack Smith and Fulton County District Attorney Fani Willis argue that Trump’s actions went beyond poor sportsmanship and entered the realm of outright illegality when he actively schemed to hold onto power. The Smith indictment states that Trump had the right to publicly speak about the election, even falsely claiming fraudulent outcomes. However, he allegedly pursued unlawful means to undermine legitimate votes and subvert the election results.
Therefore, sometimes the answer to the question “Can he do that?” is actually “no,” at least not legally. For instance, Smith charged Trump under Title 18, Section 241 of the U.S. Code, a civil rights statute that was originally enacted during Reconstruction to combat white supremacist attacks on Black Americans. Courts have since interpreted this law as prohibiting interference with the voting process and the accurate tabulation of votes. The Justice Department secured a conviction under this section in March against a pro-Trump troll who posted images intended to deceive Hillary Clinton supporters into giving up their votes. Trump will undoubtedly challenge the application of this law to his case, but the notion that it prohibits election-related chicanery has long been established in American law.
State laws also play a role in this landscape. Throughout his presidency, Trump arguably violated his own oath of office and encouraged others to do the same. While the federal level does not enforce the presidential oath judicially, Georgia criminalizes the violation of an oath by a public officer in the state. The Fulton County indictment charges Trump with soliciting Georgia officials to violate their oaths by pressuring them to overturn the state’s election results.
Charging Trump with these crimes does not guarantee a conviction. Holding him accountable for his actions is a much broader endeavor that goes beyond criminal law, whether state or federal. Trump will continue his presidential campaign while prosecutors hope to bring these cases to trial. Furthermore, even with a conviction, voters could still choose to grant him a second term. Nevertheless, these indictments serve as a reminder that the foundation of American democracy relies on more than just norms. Prosecutors are not criminalizing politics; they are addressing actual crimes that Trump and his allies are accused of committing.
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