Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion on CNN.
Tuesday marked a sad and stunning moment in American history: A former president arriving at a federal courthouse, then put under arrest by US Marshals, accused of placing the nation’s security at risk in the mishandling of classified documents and then obstructing efforts to investigate his alleged crimes.
This is the first time a former American president has been arraigned on federal charges. And the charges themselves make this moment all the more troubling.
Former President Donald Trump pleaded not guilty to all 37 federal charges at a federal courthouse in Miami on Tuesday afternoon. He stands accused of illegally taking classified national security documents with him when he left office in January 2021, then allegedly sharing some of those documents – which include highly sensitive national security secrets – with people who do not have security clearances, then refusing to return all of the documents, and then lying about it and conspiring to cover it up.
The documents in question, according to the government, “included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.” It does not take a national security expert to understand how dangerous it is to have these documents floating around – or stored in a Florida bathroom, as some of the documents were, according to the federal indictment.
Trump denies any wrongdoing. After his “not guilty” plea on Tuesday, he was released and is continuing his campaign for another term as president.
The indictment says that Trump willfully retained national security information, violated the Espionage Act more than 30 times, and conspired to obstruct justice, among other crimes. As Trump’s own former Attorney General Bill Barr said on Fox News on Sunday, “If even half of [the indictment] is true then he’s toast. It’s a very detailed indictment, and it’s very, very damning.”
Whether the former president is “toast” or not remains to be seen. What is clear, though, is that this case will be a test of the US justice system and the strength of national institutions in a (for now) post-Trump America.
The steady “deconstruction of the administrative state,” attacks on essential American institutions, and the stacking of the federal judiciary with conservative and often unqualified ideologues remain among the most devastating legacies of the Trump administration.
Now, with Trump facing charges for at least some of the many crimes he has been accused of committing, we will see just how resilient our institutions are – or whether the Trump administration did damage deep enough to undermine the basic principle that no one is above the law.
The judge who will be overseeing this trial, Aileen Cannon, is a Trump appointee who faced criticism for her ruling in favor of Trump’s request to have a third party review of last year’s FBI search of his residence in Mar-a-Lago. Her decision, legal observers from both sides of the aisle agreed, was shocking and unprecedented. A federal appeals court then ruled against the decision in December.
In a functional judicial system, individual judges may have their own political opinions, but do their best to set their own preferences aside and rule instead on the basis of the letter of the law and legal precedent. That norm has quickly slipped in the United States, as a Supreme Court now stacked with conservative judges – three of them appointed by Trump – has torn up long-held precedent and stripped long-held rights from millions of Americans.
Other far-right Trump-appointed judges have issued outrageous and shocking rulings that any honest legal observer has to admit are driven by ideology, not the law - from overruling the decades-old approval of an abortion-inducing drug to issuing highly unusual rulings in favor of the former president to simply ignoring decades of previous litigation.
One question is whether Judge Cannon will play the case straight, or lead with her politics – and how she behaves will be one indicator of either the corrective effect of American institutions, or the corrosive result of Trump’s norm-busting presidency.
Another is how the rest of the Republican Party will react. Even before they had seen the full set of charges, many Republican politicians were defending the former president, though a few have now said the charges made it appear Trump had been reckless in his handling of the documents. “A bathroom door locks,” said Speaker of the House Kevin McCarthy to reporters on Monday, referring to where some of the documents in Mar-a-Lago were found. And Trump’s primary opponents, with the exception and Chris Christie, have largely taken the highly unusual step of not emphasizing the charges in their campaigns.
Senate Minority Leader Mitch McConnell said he is “going to stay out of it.” But national security should not be a partisan issue, and the GOP owes it to the nation to assess the facts of this case with clear eyes. Instead, the Republican Party seems largely still tied to the Trump train – even as it careens off the rails.
And finally, there is the question of the public. Trump and his allies have set their own narrative, even in the face of damning evidence presented in painstaking detail: That this is a partisan witch hunt; that liberals and Democrats will stop at nothing to destroy the former president; and that the Justice Department, like America’s electoral process, simply cannot be trusted.
Like Trump’s earlier false claims that the 2020 election was stolen, this is an attack on both Democrats and American democracy more broadly, and it could have the long-term effect of seriously undermining public confidence in the rule of law and the nation itself. Already, Americans have lost significant confidence in our most venerated institutions, with confidence in the Supreme Court and the presidency taking the biggest dips between 2021 and 2022, according to a Gallup survey.
Arresting and charging a former president is no small thing, and whatever one’s politics, today is a somber day in America. There is likely no convincing Trump’s most fervent supporters that his version of events isn’t true, even if his version changes, and even as he often tells bald-faced lies – just as mounds and mounds of evidence never managed to convince many Trump supporters that the 2020 election was indeed free and fair, and Joe Biden was the rightful winner.
These kinds of divisions – not just on opinions, but on facts – are difficult gaps to bridge. And bridging them is made even more difficult when leaders of one of two major political parties refuse to take a stand for truth, democracy and the rule of law. In a time of ever-cleaving partisanship, today marks another major turning point that seems virtually guaranteed to push Trump supporters even further away from the rest of the country than before.
Still, as depressing as today may be, it would be far more deleterious to the future of the nation to simply say that former presidents are immune from the legal consequences of their actions. Ignoring wrongdoing doesn’t solve it; it allows it to fester and potentially for bad actors to act again, or for others to pick up where they left off.
Any president who is found to have used national security documents for bragging rights and flouted American law must be held accountable. Failure to do so won’t unify the country; it will only undermine confidence in its basic sense of fairness and its justice system.
So far, the gears of the justice system are grinding away. The indictment is meticulous. The arrest, despite the carnival-like atmosphere outside the courtroom and Trump’s as-usual outrageous comments on social media, was carried out with little fanfare inside.
Trump returned to New Jersey, where he delivered a bombastic speech calling his arraignment “the most evil and heinous abuse of power in the history of our country.” But the question now is whether justice will indeed prevail – or whether this former president, indicted on 37 counts, has not only broken the law, but the system designed to enforce it.