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Trump's indictment could serve as a test of democracy in the U.S.


Let's take a moment to examine the truly historic nature of this indictment of former President Trump and what it might mean as a kind of test of American democracy. Michael Gerhardt has spent his career thinking about the U.S. Constitution. He's a law professor at the University of North Carolina at Chapel Hill. He testified as a joint witness in the Clinton impeachment. He also testified before the House Judiciary Committee in Trump's first impeachment. Michael Gerhardt, welcome to the show.

MICHAEL GERHARDT: Hi. Thank you for having me.

RASCOE: Walk us through what does the Constitution have to tell us about this moment - the indictment of a former president.

GERHARDT: The Constitution actually has very little to say about this. The Constitution mostly addresses governmental action. So it might come into play if we were talking about a sitting president, but we're talking about somebody who's a private citizen. Granted, he is a former president, but right now, the Constitution doesn't allow him or give him any entitlement to any special kind of immunity.

RASCOE: But is there an idea of those kind of unspoken things, the traditions and these kind of mores we've had as a society, that have made legal prosecution of a former president tricky or complicated in the mind of even, you know, legal scholars?

GERHARDT: Yes. I mean, there are norms or practices that government - in this case, the prosecutor - might try to follow. Even so, there are norms or expectations that when there's a high-profile figure like this, a prosecutor has got to be even more certain than usual that he or she has evidence beyond a reasonable doubt. This person committed a crime. Presumably, the prosecutor in New York has used that standard. But at the same time, there are safeguards available to Trump, as they would be available to any private citizen, to test that and to try and seek some kind of proof that it's really not evidence driving this, but partisanship.

RASCOE: Trump and his supporters are calling this political persecution. Is there a risk where maybe, you know, another prosecutor may go after Joe Biden after he leaves office? Like, is that a concern, that you could have this kind of pingpong effect once people leave office?

GERHARDT: Well, Trump has raised that concern before. He actually raised it in a case in the Supreme Court called Trump v. Vance, involving a district attorney of Manhattan, while Trump was president. And the Supreme Court of the United States, with the justices that Trump had appointed, found no legitimate basis for Trump's concern, even as a sitting president, to have a state prosecutor conduct a criminal investigation of Trump. So now Trump's no longer in office, and therefore we don't really have any more concerns now that he's out of office than we might have had while he was in office.

What Trump is raising largely are - is a political case, trying to sort of rev up the political base to protest, perhaps like what happened on January 6. What's at stake, actually, in this case is also something that's at stake insofar as democracy is concerned. And that has to do with the rule of law. The rule of law is fundamental to the maintenance of our democracy. And one question here is whether or not that rule of law could be applied fairly to Mr. Trump in the criminal process. We're going to see lots of tests of that. But that's the main thing I think you've got to watch, is whether or not the rule of law is going to be followed in this matter, regardless of how powerful this person was or will be.

RASCOE: And so when you're saying that's what we should look for, what specific things do you mean to ensure that the rule of law is playing out as it should? What should people be looking for?

GERHARDT: Well, what they're going to look for, I think, primarily has to do with the evidence. How strong and clear is it? Next thing we've got to watch, of course, is the actual trial. Mr. Trump's lawyers will be there every step of the way, and they'll have to make sure that the jury is fairly chosen and that the jury does its job. This ultimately will be decided not in the court of public opinion, but it will be decided by those 12 people. And that's what happens every day in criminal trials.

And the Constitution will apply every step of the way to ensure a fair trial for Mr. Trump. Mr. Trump may cross-examine witnesses who are hostile to him, and the prosecution may put on its case. And if it's done properly, and there's a result that's a conviction, then of course, Mr. Trump may appeal that conviction. If Mr. Trump is found innocent, then according to the law, that's the end of the matter. The prosecutor doesn't get a second chance and the prosecutor doesn't get to appeal a finding of innocence.

RASCOE: That's Michael Gerhardt. He is a constitutional law scholar at UNC Chapel Hill. Thank you so much for being with us.

GERHARDT: Thanks for having me. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.