The GOP After Trump’s Indictment

The New York attorney general announced last week that her office was investigating a possible criminal case against The Trump Organization.

I don’t know if you count the New York attorney general, which is merging its investigation with that of the Manhattan district attorney, as part of one criminal investigation or two separate investigations. Call it one. Add the D.C. criminal investigation of Trump’s possible incitement of an insurrection on January 6, stir in the Georgia criminal investigation of Trump’s possible interference with the election results, and you’ve got at least three ongoing criminal investigations of Trump.

Let’s do a thought experiment here.

Suppose Trump gets indicted somewhere. What will Republicans be saying then?

In my personal thought experiment, Trump would turn up the heat on Republicans. Trump would feel more threatened, and he would need the help of other elected officials now more than ever. So he’d insist that Republicans pledge fealty to him: Anyone who didn’t insist that the criminal indictment was a witch hunt would be deemed a weak leader who should be challenged in a primary.

And, of course, we’d hear a chorus of how people are innocent until proven guilty. This is, of course, true, but politicians tend to think that it’s more true for members of their own party than for members of their opponent’s.

Most Republicans wouldn’t know what to do. On the one hand, they’d do their best to avoid answering questions about this, because there would still be a chance that Trump would be acquitted. On the other hand, they’d love to start hedging their bets, because there was a chance that Trump would be convicted.

Nudge your thought experiment forward: The criminal case against Trump approaches trial.

Get your beer! Get your popcorn! This will be the trial of the century!

(On reflection, maybe that last paragraph was a tad flippant. After all, a man’s liberty would be at stake if Trump were tried on criminal charges. On the other hand, that man has made his entire life one of a carnival barker’s.)

Get your beer! Get your popcorn! This will be the trial of the century!

There’s a chance, naturally, that Trump would be acquitted. He’s presumed innocent. He may not have committed any crime at all. He may not have committed a crime that could be proved beyond a reasonable doubt. Or just one fervid Trump supporter may have slipped past the prosecutors on voir dire, and the jury could hang.

It turns out that Republicans who hedged their bets were doing the politically intelligent thing.

There’s also a chance that Trump would be convicted.

Cornered, Trump’s demands for fealty would grow even louder. The trial was a witch hunt! The prosecutors were Democratic scumbags! Trump will win on appeal and vindicate himself!

Life would then become even more difficult for Republicans. Trump’s route to vindication would have narrowed, and it would be silly to support him stridently at this point. But I suspect that Trump’s base — the 70 percent of the Republican Party that supports him today — would not yet be moving anywhere. Republican politicians still couldn’t abandon Trump, because Trump would still have too much grassroots support.

The timing of this is terribly bad for Republicans: Trump might be indicted, if at all, in the next few months. He might be convicted, if at all, a year after that. (This is all spitballing. I don’t know which office, if any, might indict Trump.  And I don’t know what charges that office might bring. A straightforward indictment might be tried quickly. An indictment out of the Manhattan DA’s office that included racketeering charges would take much longer, with pretrial motion practice and efforts at interlocutory appeal if Trump’s motions failed.) In any event, an indictment (or two), or any conviction challenged on appeal, might be pending at the time of the November 2022 midterm elections.

What’s the right political play for a Republican politician there?

Lord knows.

Even if a conviction, if any, were affirmed, I’m still not sure where the Republican base would be. If the folks who invaded the Capitol Building on January 6 were like ordinary tourists, hugging and kissing the police, then four legs are good and two legs are better, and Trump would remain innocent despite his conviction and imprisonment. It’s just a matter of waiting out the sentence until the base would have a chance to vote for Trump for president again.

What do Republicans do then?

If you’re Liz Cheney, I know what you’re saying, because you’ve decided that the Republican Party must move forward without Trump.

But what about the others?

If you’re Lindsey Graham, I have no idea whether you’re the Lindsey Graham of 2016 — where Trump is a “race-baiting, xenophobic” bigot — or the Lindsey Graham of 2020 — where Trump represents the future of the Republican Party. I don’t know which is more expedient, so I don’t know which Lindsey will appear.

If you’re Kevin McCarthy, do you stand by Trump? It’s possible to straddle small divides, but how does one straddle the Grand Canyon?

If you’re Mitch McConnell, can you finally disavow Trump, as you’ve apparently been trying to do for a while?

I assume that Republican politicians, or their advisors, are considering all of these possibilities, but I really have no clue what they’re thinking. Maybe they’re just waiting to see what tomorrow will bring.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected]. In-house counsel, biglaw