Below is my column in The Messenger on the celebrations after the fourth indictment of former president Donald Trump — and the dismissal of any concerns over the implications of these prosecutions for free speech. Some Democrats are warning that they need to avoid the public displays of joy. The danger is that Democrats just might conga their way into another 2016 backlash against the establishment.
Here is the column:
The great novelist F. Scott Fitzgerald once wrote that “there is something awe-inspiring in one who has lost all inhibitions.” Fitzgerald’s observation came back to me in watching the media coverage of the latest Trump indictment. As I myself covered the indictment as a legal analyst for Fox, I once again felt a certain longing for the abandon shown by some of my counterparts who dismissed any concern over what are now roughly 100 criminal charges against former President Donald Trump in four different indictments. It was like watching a party through a window that you could not join.
I cannot say that I have ever been much of a party animal. However, there are times when being a legal analyst is like being the designated driver at a rave party. Everyone seems to have lampshades on their heads as you furiously google-map the safest route home.
At MSNBC, host Rachel Maddow interviewed Hillary Clinton in a segment that began with the two liberal figures laughing joyfully. Clinton then regained her composure and solemnly declared her “profound sadness” at this moment. The scene captured the dilemma for press and pundits in attempting to control emotions that seemed at times like the open ecstasy of a thrill kill.
Former Biden Press Secretary Jen Psaki had earlier pushed book clubs to adopt the indictments for collective reading, and others had suggested that families should read “every word” so as not to miss even a syllable of satisfaction. Nothing allows a Democratic child to sleep more contently at night than the predicate offenses to a Trump racketeering charge.
Former Democratic Senator and MSNBC contributor Claire McCaskill (who previously warned everyone to “back off” Hunter Biden) was in open rapture. She proclaimed “the good news is we finally have Rudy Giuliani indicted. Whoo-hoo! That makes me very happy.”
For her part, MSNBC host Andrea Mitchell took a moment to celebrate a “strong black woman standing up to Donald Trump,” adding a race element to the celebratory charging moment.
The celebration got to the point that a leading democratic adviser suggested others should tamp down the public displays.
It did little good. If you watched the last few days of cable programming, you would think that Porn Hub was about to introduce a new fetish category for “Trump Indictments.”
These “Whoo-hoo” moments are not shared by many who fear that these indictments are criminalizing political speech and chilling future challenges to elections. For many, it is hard to get to beyond the name on the caption to consider the downstream implications of these sweeping indictments.
It’s not hard to see the implications: Many of the over 160 individual acts described in the Georgia indictment are political speech ranging from actual speeches to tweets to telephone calls. Some of these crimes could as easily apply to Democrats in past challenges.
Hillary Clinton maintained for years that the 2016 election was stolen by Donald Trump who was an illegitimate president. Her campaign hid the funding of the infamous Steele Dossier and lied to media in denying the funding. It then pushed false claims of Russian collusion.
Stacey Abrams in Georgia refused to concede the election and alleged widespread voter suppression and election irregularities.
Clinton’s former general counsel, Marc Elias, challenged an election in New York on the basis for voting machines changing votes. Sound familiar?
In January 2005, then-Sen. Barbara Boxer joined former Rep. Stephanie Tubbs Jones to challenge George W. Bush’s victory over Democratic challenger John Kerry in the state of Ohio. Speaker Nancy Pelosi praised Boxer’s challenge as “witnessing Democracy at work … fundamental to our democracy.”
House Jan. 6 Committee chairman, Bennie Thompson (D-Miss.), supported the challenge to the certification of the 2004 election results. His fellow committee member, Rep. Jamie Raskin (D-Md.), sought to challenge Trump’s certification in 2016.
In both the indictments by Special Counsel Jack Smith and Fulton County District Attorney Fani Willis, the prosecutors simply declare that Trump and his team knew that there was no voting fraud and therefore can be jailed for contesting the election of Joe Biden. No one suggested that the challenges in 2004 and 2016 had merit, but they were celebrated not prosecuted.
As politicians and pundits conga-line around this story, there is little concern over the growing anger and divisions in the country. A recent poll shows the country divided in half on the charges. Among the 53 percent favoring the charges are 85% of Democrats. Less than half of independents and only 16% of Republicans favor the charges. Other polls show 55 percent of the public viewed the earlier indictments as “politically motivated.”
The indictment (let alone the quadruple indictment) of the leading candidate for the presidency should not occur on novel or attenuated claims. That is what is happening in Atlanta, New York, and Washington. (I have previously written that the documents prosecution in Florida is a much stronger case.) As someone who criticized Trump on his election claims as well as his Jan. 6 speech, I find many of these allegations to be legitimately disturbing and deplorable. Yet, that does not justify the criminalization of the claims. It does not excuse the cost to the Constitution or the country in pursuing these cases.
Many pundits are fully aware of the impact these cases (and the public celebrations) are likely to have on the Republican base. They hope that it will secure the nomination for Trump, thereby securing an easy opponent for the general election. Yet, they are also playing a dangerous political game if they overplay (or over-celebrate) this moment.
Trump was swept into power on an anti-establishment movement that took Washington by surprise. The establishment has now given Trump an even greater appeal as a statement of defiance, particularly if Democratic prosecutors seek to jail him. It is the same feeling that I wrote about before the 2016 election. A significant number of those who oppose the indictments in polling are also expressing opposition to Trump as a candidate. That can easily change if the 2024 election becomes another vote against the establishment as opposed to a vote for Donald Trump.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.