Comment: Indictment points to lack of good faith on both sides

By Clive Crook / Bloomberg Opinion

At the core of the momentous decision to indict former president Donald Trump for conspiring to overthrow the 2020 election are questions of good faith; about both the accuser and the accused. Did Trump knowingly lie about electoral fraud to stay in office? Is Jack Smith, the special counsel who brought the case, acting from an impartial commitment to enforce the law?

The country seems irreconcilably divided on these points. Trump’s allies and enemies take the other side’s bad faith for granted. His supporters say he acted as he did because he believed the election was stolen, and they see the prosecution as political. His opponents are equally certain of Trump’s dishonesty and Smith’s fair-mindedness.

There’s no conversation across this divide, because neither side will grant any plausibility to the other’s position. This collapse of communication — extending not just to disagreements about policy but to the very foundations of orderly government — is a real and mounting threat to American democracy.

The optimistic view is that the emerging details of Trump’s deceptions will be so exhaustive as to leach support away and end his political ambitions. But it’s also possible that the spectacle will harden the two sides’ mutual antipathy, inflame the country’s politics even more, and further erode trust in the independence of the justice system. Much as I hope for the first outcome, I think it could go either way.

Smith’s indictment repeatedly emphasizes that Trump didn’t just advance false claims about electoral fraud. (That isn’t illegal.) The allegation is that, knowing they were lies, he used them to defraud and disenfranchise voters. Everything depends on proving this intent.

It’s hardly an open-and-shut case; especially if you believe, as I do, that Trump’s personality disorder is such that he believes his own lies. The indictment includes page upon page of instances of Trump being told that his claims of electoral fraud were false; but, so far as I can see, no clear proof that he believed what he was told. What he should have believed, and what he did believe, are two different things.

With luck, the evidence that he knew he was lying and tried to overturn the election regardless will be compelling enough; not to persuade his enemies, who are already certain of his guilt, and not just to persuade a jury, but to sow doubt among his supporters. We haven’t yet heard from his defense. Perhaps it will fall flat; perhaps Trump will be embarrassed, humiliated and spat out by Republicans. We’ll see.

As for the special counsel’s good faith: Smith’s reputation could hardly be better, but the same cannot be said of the Justice Department or the justice system more broadly. The contrast between the zeal with which prosecutors have pursued Trump and the Jan. 6 rioters, on the one hand, and the accommodations extended to Hunter Biden’s assorted alleged crimes and influence-peddling, on the other, is striking.

Or at least, it ought to be. A worryingly large number of Americans don’t trust (or want) the system to dispense justice without regard to politics. The decline in confidence in the U.S. judicial system is bipartisan.

Meanwhile, the country’s political leaders are making little effort to repair the breach. House Speaker Kevin McCarthy and other Republican leaders have come to Trump’s defense, saying the Justice Department is pursuing him to distract attention from scandals threatening President Biden. Many Democratic politicians see Trump’s legal perils and the Republicans’ inability to get past them as critical assets in next year’s election.

Where is the politician seeking cooperation in restoring trust in vital institutions? Where is the outreach to voters in the opposing ranks? All the energy is directed at committed supporters, whipping them up against the dupes and accomplices on the other side.

The curse of contemporary American politics is that good tactics and good government seem for the moment to be diametrically opposed. Perhaps Smith’s indictment is the beginning of the end for Trump. I hope so; because the alternative is truly frightening.

Clive Crook is a Bloomberg Opinion columnist and member of the editorial board covering economics. Previously, he was deputy editor of the Economist and chief Washington commentator for the Financial Times.