Being Indicted Is Bad

If you strike Trump down, he will not become more powerful than you can possibly imagine. And either way, Republicans are in for a painful primary.

Dear readers,

As it looks increasingly likely that Donald Trump will be indicted for something — and if you’re interested in updates on that situation, you should be listening to my podcast Serious Trouble — we’re seeing speculation about what that would mean for 2024 presidential politics.

Ben Domenech, longtime publisher of the Federalist, has issued what he seems to believe is a warning:

Ben Domenech @bdomenech

Indictment guarantees nomination.

Megan McArdle @asymmetricinfo

Andy McCarthy lays out the DOJ's case against Trump, and it does not look good. https://t.co/PxNeZVgG3I

A lot of people have accepted this premise and pointed out that this reflects poorly on Republican voters — both their attitude toward criminal behavior and their attitude toward the importance of winning general elections. But I don’t think I believe the underlying claim: that indicting Trump would make it more likely that he will be the Republican nominee.

Supporters of former US President Donald Trump drove around the Paul G. Rogers Federal Building and Courthouse as the court held a hearing to determine if the affidavit used by the FBI as justification for the search of Trump's Mar-a-Lago estate should be unsealed, in West Palm Beach, Florida on August 18, 2022. (Photo by Chandan Khanna/AFP via Getty Images)

I think we should start by imagining what the 2024 Republican nominating contest will look like if Trump is not indicted.

Trump will start as a quasi-incumbent, having been the party’s nominee in the prior two election cycles, and being believed by the preponderance of the party’s voters to have won in both of those cycles. Trump still demonstrates obvious sway over the party’s voters through his endorsements of (often weak or weird) candidates in primary elections.

A successful Republican opponent will need to knock him off his pedestal to win the party’s nomination. And to dislodge an incumbent, you need to make more than a positive case for yourself — you need to make a case against the incumbent. But you can’t make the typical general-election case against Trump, because you’re talking to voters who like Trump a lot and think he’s been badly mistreated.

So what can someone like Ron DeSantis say in a primary against Trump? I think there are a few strong messages he can use with Republican primary voters:

• We can maybe have Trump for another four years, or we can have a Republican president for eight years. Trump would take office as a lame duck, forcing the GOP to defend an open-seat race in the next general election.

• Trump is old (76), and the party needs a young candidate whose vitality provides more of a contrast to Joe Biden (79). (DeSantis will be 44 this month.)

• Trump, fixated on relitigating the 2020 election, has not been a leader on key culture war issues where DeSantis has established himself as a standard-bearer for the party.

• Trump imposed too many COVID restrictions in 2020 and relied too much on Anthony Fauci to guide federal policy. Republican voters get mad at Democrats over COVID restrictions, but a lot of those restrictions started with edicts or recommendations from Trump’s own administration. Because the bureaucracy is so liberal and so hostile to Republicans, the party needs a presidential nominee who is better prepared to stand up to the bureaucrats, override their recommendations, and even fire them. DeSantis has not been shy about picking those fights in Florida. Meanwhile, Trump’s rants about the “Deep State” only serve to underscore how frequently they owned him.

• The 2024 election needs to be about Joe Biden’s and Democrats’ weaknesses on inflation, spending, crime, and border security. DeSantis will run a campaign that is laser-focused on what’s wrong with Biden. But if Republicans nominate Trump again, nobody will be able to shut up about Trump — not Democrats, not the media, and not Trump himself. This will give Biden a pass on his record and make it possible for Democrats to win again.

Now, this will all be something of a tough sale, because DeSantis would have to pitch this to voters who mostly really like Trump. The question is, does the sale become harder or easier if Trump has been indicted?

The argument that an indictment helps Trump get nominated relies on the idea that an indictment would return Trump’s grievances to the center of Republican base voter interest. Trump’s claims of persecution would become a core current issue, not relitigation of the past. But I think it’s important to note that Trump’s home has already been raided by the FBI. If he is not indicted, he will still be able to talk about how Democrats and the Deep State are out to get him, but without the burden of actual criminal proceedings. Indeed, if Trump isn’t indicted, he can both rail against the Deep State’s conspiracy to prosecute him and crow that they weren’t able to make it stick.

Meanwhile, the downsides of being indicted are so obvious I barely even need to say them. (But I will anyway.)

First of all, it would strengthen the argument DeSantis would need to make about Trump being a weak general election candidate: He’s literally under indictment. The indictment isn’t fair, but a primary election isn’t about fair — it’s about who can win the presidency and stop the Democrats. If DeSantis is the nominee, the election is about inflation; if Trump is the nominee, the election is about whether Trump is a criminal, and as Republican voters know, there’s nothing Democrats like more than arguing about whether Trump is a criminal. Plus, DeSantis could promise to halt the prosecution or pardon Trump — making clear to Republican voters that they don’t actually need to nominate Trump in order to protect or avenge him.

Secondly, facing a criminal trial is burdensome. It would be a distraction for Trump as he seeks to campaign. Trump would also face conflicting incentives — the public messaging that would best serve Trump as a defendant is different from the public messaging that would best serve him as a candidate. There are reasons people rarely run for office while under indictment, and why they especially do not run campaigns where the centerpiece issue is the indictment itself.

All of which is to say, I think it makes more sense to assume that an indictment harms Trump’s political prospects, even in a primary, than to assume that it helps them.

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I also want to note that, whether or not Trump gets indicted, a contested 2024 primary campaign is going to be hell for Republicans.

If Trump loses the nomination to DeSantis, he’ll try to nuke the party in the general election. But there are also problems with the pressure a primary will create on issue positions: Most importantly, in a competitive primary, all of the Republican candidates will face extreme pressure to endorse a nationwide abortion ban, which would be a huge liability in a general election, as you can tell from the mad scramble by Republican nominees this cycle to moderate their abortion stances.

In a competitive primary, the candidates will also make promises about prosecutions that will haunt them in a general election. As I said, I think DeSantis (or any other potential rival) will need to promise to protect Trump from prosecution. Meanwhile, Trump is already out there floating the idea that he will pardon January 6 defendants. In each case, that will give a hook for Democrats to tie the Republican nominee to criminal proceedings they’d want to disassociate themselves from in a general election: if DeSantis is nominated, it lets Democrats still use Trump’s malfeasance as a motivating issue for their voters; if Trump is nominated, it means January 6 is not water under the bridge, and Democrats can attack him for seeking to encourage more riots.

I bring up this mess because I think it’s the missing piece of the picture. Republicans like Domenech are thinking about the prospect of Trump being indicted, imagining what that would mean for the primary, and grimacing. But the primary’s going to be a huge mess for the party either way, unless DeSantis takes a pass and gives Trump a clear shot.

Very seriously,

Josh