Election 2024 /

WSJ: The Great Democratic Lawfare Bust The indictments against Trump have backfired in historic fashion. Democrats should have trusted the voters.

  |   By Polling+ Staff

(Photo by David Dee Delgado/Getty Images)

The Great Lawfare Bust.  So headlines the Wall Street Journal Editorial Board:

The Great Democratic Lawfare Bust

The indictments against Trump have backfired in historic fashion. Democrats should have trusted the voters.

The Ed Board writes:

“When Donald Trump was hit with four indictments last year, the prevailing Democratic belief was that Mr. Trump would be a convicted felon by Election Day. How could President Biden then possibly lose? Yet trying to defeat Mr. Trump through the courts instead of at the polls has turned out to be one of the great political miscalculations in presidential history. 

The Supreme Court’s decision last week that the Presidency enjoys constitutional immunity for official acts has more or less sealed the failure of the lawfare election strategy. Mr. Trump can be charged for unofficial conduct, but what parts of the Jan. 6 indictment, if any, are in that category? Lower courts will chew this over, but it’s hard to see a trial before Election Day, or maybe ever if Mr. Trump wins.

Is there a hall of fame for political backfires? Democrats cheered on the prosecutions of Mr. Trump, hoping they’d guarantee his defeat. Instead they energized his re-election effort. The first indictment, brought by Manhattan District Attorney Alvin Bragg, stretched the law to turn misdemeanor bookkeeping offenses into felonies. Almost immediately, Mr. Trump’s support in the GOP primary jumped several points, and in the Real Clear Politics polling average it never again fell below 50%.  

Mr. Bragg’s indictment, which back then was criticized as weak by legal analysts of all persuasions, gave Mr. Trump the argument that he was being singled out unfairly. Republicans rallied to him. Maybe Mr. Bragg and other prosecutors suspected this would happen. But all the better, from their perspective, if that would lead Republicans to pass over younger candidates, including Ron DeSantis and Nikki Haley, to renominate Mr. Trump, who supposedly couldn’t win a general election.

So much for that. The concocted nature of Mr. Bragg’s indictment, the first one to be unveiled, may have tainted the others in the public mind. Mr. Bragg secured a jury conviction this May, but it didn’t move the polling, since voters can see that this business records prosecution would not have been brought against any businessman not named Donald Trump.

Meantime, the other legal efforts against him blew up one by one. The attempt by Colorado and other states to kick Mr. Trump off the ballot as an “insurrectionist” failed 9-0 at the Supreme Court. The Georgia prosecution of Mr. Trump for trying to reverse the 2020 election imploded amid embarrassing public testimony from Fulton County District Attorney Fani Willis about her romantic relationship with one of her underlings.

In the federal Jan. 6 case, special counsel Jack Smith underrated the legal challenges of bringing American history’s first prosecution of a former President. This included possible claims of constitutional immunity. Mr. Trump was sure to exploit every possible challenge, and the lower courts erred by refusing to look seriously at the Supreme Court’s Nixon v. Fitzgerald precedent. The High Court was all but obliged to take the case.

Mr. Smith might have written a narrow indictment focused tightly on the law, but instead he filed a document that reads like a report by the House Jan. 6 committee. Then he demanded that the case proceed on an election timetable, though courts did not agree, and now he is left with a shell of a case.

Mr. Smith’s other prosecution of Mr. Trump, accusing him of keeping classified files after he left office and then covering it up, has been tied up in motions, with new briefings this month on whether or how presidential immunity applies. Meantime, Mr. Biden was let off the hook for his own classified stash, since special counsel Robert Hur thought a jury would see him as too old and forgetful to convict.

None of this is a vindication of Mr. Trump’s conduct or an endorsement of paying off a porn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump’s biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all.

Democrats should have trusted the voters. They beat Mr. Trump once, if barely, in 2020, and won midterm elections in 2018 and 2022, as Democratic turnout soared. Yet this time, they thought, the legal cases against Mr. Trump would let them win almost by political disqualification. And since Mr. Trump was sure to lose, why bother having awkward conversations about 81-year-old Mr. Biden?

The silver lining is that perhaps this Democratic lawfare failure and the Supreme Court’s immunity decision will cause future prosecutors to think twice about indictment as a political strategy. The painful result for Democrats is that Mr. Trump’s prosecutors might end up indicting him into the Oval Office.”

And once back in office, will the new President let loose his prosecutors on Joe Biden and company?