septemberseptember14–2714–27, 2020, 2020| new| newyorkyork 3333Changing World Politics captures the modern norm, which empha-
sizes the social value of transparent and fair prosecutions as a deter-
rent. These cases apply most often, though, to states transitioning
from dictatorship to democracy. There is less precedent for what to
do when a reasonably healthy democracy elevates a career criminal
to the presidency.
Trump’s unique contribution to the decay of the rule of law has
been to define criminality in political terms, but he has also joined a
very old project in which the political right has long been engaged:
associating criminality with a category of people, so that knocking
over a 7-Eleven makes you a “criminal” but looting a pension fund
does not. Trump’s unusual level of personal crookedness dovetails
with a familiar reactionary agenda of combining permissive enforce-
ment of white-collar crime with a crackdown on street crime—or, as
Trump calls it, simply “crime.” The implicit meaning of “Law and
Order” is that order is distinct from lawfulness and that some crimes
create disorder while others do not.
Trump’s reversals of Obama-era police reforms and his open
contempt for the law send a signal about whom the law con-
strains and whom it protects. The fashioning of a more equal
society means sending a different message: The rule of law must
d everyone, just as it protects everyone. A world where the
er of the state can be brought to bear against a person who
once its most famous symbol of wealth is one where every
erican will more easily imagine a future in which we are all
truly equal before the law. ■he defendant looked uncomfortable as he stood to testify in the shabby
courtroom. Dressed in a dark suit and somber tie, he seemed aged, dimmed,
his posture noticeably stooped. The past year had been a massive comedown
for the 76-year-old former world leader. For decades, the bombastic onetime
showman had danced his way past scores of lawsuits and blustered through
a sprawl of scandals. Then he left office and was indicted for tax fraud. As a
packed courtroom looked on, he read from a curled sheaf of papers. It seemed as though
the once inconceivable was on the verge of coming to pass: The country’s former leader
would be convicted and sent to a concrete cell.
The date was October 19, 2012. The man was Silvio Berlusconi, the longtime prime
minister of Italy.
Here in the United States, we have never yet witnessed such an event. No commander-
in-chief has been charged with a criminal offense, let alone faced prison time. But if Donald
Trump loses the election in November, he will forfeit not only a sitting president’s presump-
tive immunity from prosecution but also the levers of power he has aggressively co-opted
for his own protection. Considering the number of crimes he has committed, the time span
over which he has committed them, and the range of jurisdictions in which his crimes have
taken place, his potential legal exposure is
breathtaking. More than a dozen investiga-
tions are already under way against him
and his associates. Even if only one or two
of them result in criminal charges, the pro-
ceedings that follow will make the O. J.
Simpson trial look like an afternoon in traf-
fic court.
It may seem unlikely that Trump will
ever wind up in a criminal court. His entire
life, after all, is one long testament to the
power of getting away with things, a master
class in criminality without consequences,
even before he added presidentiality and all
its privileges to his arsenal of defenses. As
he himself once said, “When you’re a star,
they let you do it.” But for all his advantages
and all his enablers, including loyalists in
the Justice Department and the federal
judiciary, Trump now faces a level of legal
risk unlike anything in his notoriously
checkered past—and well beyond anything
faced by any previous president leaving
office. To assess the odds that he will end up
on trial, and how the proceedings would
unfold, I spoke with some of the country’s
top prosecutors, defense attorneys, and
legal scholars. For the past four years, they
have been weighing the case against
Trump: the evidence already gathered, the
witnesses prepared to testify, the political
and constitutional issues involved in pros-
ecuting an ex-president. Once he leaves
office, they agree, there is good reason to
think Trump will face criminal charges. “It’s
going to head toward prosecution, and the
litigation is going to be fierce,” says Bennett
Gershman, a professor of constitutional law
at Pace Law School who served for a decade
as a New York State prosecutor.
Here, according to the legal experts, is
how Trump could become the first former
president in American history to find him-
self on trial—and perhaps even behind bars.T
The criminal case against himis already in the works—and it could go to trialsooner than you think. By Jeff Wise