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      Let’s Have a Face-Off on Trump’s Indictment

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      The latest Trump indictment is much more complicated than the first two Trump indictments and probably any indictment that would come out of Fulton County, Ga. It attacks a scheme that played out across several weeks, in several states, involving dozens of others, including Trump-allied activists, those cited as co-conspirators and G.O.P. hacks who tried to overturn the 2020 election in state after state.I thought the best way to understand the challenges the prosecution and the defense would face before jurors and appellate judges would be to let both sides have their say — through me. Each side’s factual and legal arguments will play out in hundreds of pages of briefs and countless hours of trial testimony and oral advocacy. Let me cut to the chase, arguing the primary issues without, I hope, losing too much of the complexity of the case.Imagine two lawyers arguing their cases for you, a nonlawyer:Prosecution: Look, I know the indictment is long — and the trial may well last for weeks — but the elevator pitch is simple. Donald Trump conspired with a number of other individuals to overturn an election that he knew he lost. That scheme included a number of elements, from deliberately lying to state legislators to defraud them into altering the results to orchestrating a fake elector scheme that cast sham Electoral College votes to threatening a state official to help Trump “find” the votes necessary to change the outcome in Georgia.Defense: Sure, that all sounds compelling, but on closer examination, the case collapses. Let’s just start with the word “knew.” You’re going to present evidence that a number of administration officials and others rendered an opinion that the election was fair and that Joe Biden won. We’re going to present evidence that Trump received an avalanche of legal counsel to the contrary. He heard from lawyer after lawyer who told him that there may well have been decisive amounts of fraud in key swing states. Trump heard from two sets of lawyers who disagreed with each other, and he decided to follow the advice of one team of attorneys over the other. Following bad legal advice shouldn’t land anyone in jail.And you well know that each and every statute in your indictment requires a showing of criminal intent. For example, your most attention-grabbing count — 18 U.S.C. Section 241 — which protects the right to vote from criminal conspiracies, requires proving my client possessed “the intent to have false votes cast.” He intended for electors to cast true votes, in his favor.You also know that the viability of two other counts — obstruction of an official proceeding and conspiracy to obstruct an official proceeding — “hangs on by a thread,” in the words of Lawfare’s Saraphin Dhanani. The statute itself is poorly written and may not even apply to Trump’s conduct, and the intent requirement may be more strenuous than you believe. After all, in an appeals court ruling upholding a verdict against a Jan. 6 defendant, Judge Justin Walker wrote in his concurrence that to prove corrupt intent, you don’t just have to prove a defendant knew he was obtaining an unlawful benefit but also that obtaining that unlawful benefit was his “objective” or “purpose.”Good luck making that case. Trump’s objective was to expose fraud.Prosecution: The people you call Trump’s lawyers, we call his co-conspirators. A number of the people that you say Trump relied on weren’t providing legal counsel in good faith; they were scheming right along with him to commit crimes. And you don’t have to trust my word on that. Look at court cases and bar actions. Several of Trump’s co-conspirators have been fined by courts and now face the potential loss of their law licenses because of the advice they gave.In fact, “advice” is the wrong word. Lawyers aren’t fined and disbarred for giving good-faith legal advice. But co-conspirators are punished for breaking the law.Moreover, you might fool Trump supporters, but you won’t fool the jury. Proving intent is not nearly as difficult as you’re telling the public. Defendants lie about their intentions all the time, and juries are fully capable of seeing through those lies. We’re going to show the jury that every credible official gave Trump the same advice, and we’re going to show that Trump thought at least some of his allies’ advice was “crazy” and that he thought Mike Pence was “too honest.” Cassidy Hutchinson told the House Jan. 6 committee that Trump told his chief of staff, Mark Meadows, something like, “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.”The man wasn’t trying to expose fraud. He was committing fraud.Defense: You believe that Trump told Pence he was too honest? Or that he said Sidney Powell’s case was crazy? Your witnesses are lying. He never said Pence was too honest.Prosecution: So you’re telling me that Trump is going to take the stand and deny those statements to the jury? And then I get to cross-examine him?Defense: I’ll get back to you on that.Prosecution: And don’t get me started on that First Amendment defense I’ve watched you make on Fox News. First-year law students learn, as a former federal prosecutor told The Times, “there is no First Amendment privilege to commit crimes just because you did it by speaking.” Look at the indictment again. We acknowledge that Trump had the right to challenge the election and to file all those absurd lawsuits. We’re not indicting him for any of that. We’re not even indicting him simply for lying. We know that politicians have lied about elections practically since the founding of this country. We’re indicting him for entering into conspiracies, and we both know there is no First Amendment privilege to conspire to cast false electoral votes. Courts have heard cases involving fraud and conspiracies against rights — including voting rights — for decades, and the First Amendment doesn’t shield proven conspirators from criminal liability.Defense: So we’re talking about court precedents now, are we? The key precedents you cite are old. The most important Supreme Court precedent involving conspiracies against rights was written by Thurgood Marshall. Let’s just say that his jurisprudence is out of fashion with the court’s conservative majority.In reality, the Supreme Court has been busy narrowing the reach of federal fraud statutes. If you haven’t read National Review’s editorial about the case, I’d urge you to read it now. Fraud statutes are designed to prevent citizens from swindling the government out of money or tangible property. The obstruction statute is designed to stop witness tampering or destruction of evidence, not to stop litigants from making bad legal arguments about election fraud. And the conspiracy-against-rights count applies a Reconstruction-era statute that was designed to, as National Review argues, “punish violent intimidation and forcible attacks” against Black Americans who tried to vote.In other words, even if you prove the facts of your case, the statutes just don’t apply.Prosecution: Yes, I’ve read the National Review editorial, but might I direct you to the former prosecutor Ken White’s comprehensive response? The bottom line is that you’re describing what you want the law to be, not what the law is. For example, your arguments about the fraud count don’t apply to the actual fraud statute we charged. Moreover, National Review’s interpretation of the law conflicts with court precedent that’s more than a century old.In 1910 the court wrote that the definition of a conspiracy to defraud the United States “is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.”I know you don’t think that Section 1512, the obstruction statute, applies to this case, but the United States Court of Appeals for the D.C. Circuit upheld our broader interpretation just this April — in a case you already cited, by the way. You’re banking on the Supreme Court disagreeing with a decision rendered by a circuit court majority that included a judge who once clerked for Brett Kavanaugh.As for Section 241, which prohibits a “conspiracy against rights,” once again our interpretation of the statute is supported by generations of precedent. A review of relevant case law takes us from a series of critical cases in the 1930s to the 1974 Supreme Court opinion I talked about earlier and to a conviction this year of a man named Douglass Mackey. He engineered a scheme to deceive Hillary Clinton voters into “voting” by text message rather than casting an actual, legal ballot. His scheme wasn’t violent or forcible, but it was certainly illegal.Look, lawyers make good-faith arguments to reverse or revise precedent all the time. Sometimes those arguments succeed. But you need to tell your client that the existing case law is on my side, not yours, and if he is resting his defense on the Supreme Court coming to his aid, you might want to remind him that even the justices he appointed rejected or refused to hear his legal arguments many times before.Defense: There’s a Supreme Court case you failed to mention, McDonnell v. United States. I know it doesn’t involve the statutes at issue here, but the case shows the Roberts court’s desire to narrow broad criminal statutes. A unanimous Supreme Court threw out the conviction of the former Virginia governor Robert McDonnell on the grounds that the lower courts had construed the term “official act” too broadly in a bribery case. This is a clear indication that the Supreme Court is looking to limit, not expand, the interpretation of federal criminal statutes.Also, remember the rule of lenity? When a law is unclear or ambiguous, the benefit of the doubt goes to the defendant, not the government. And again, this is a principle embraced by justices across the ideological spectrum. This term, the court used the rule of lenity to rule in favor of a defendant in a Bank Secrecy Act case, and Justices Ketanji Brown Jackson and Neil Gorsuch were in lock step agreement. I can read the judicial signs, and the signs point toward narrowing the law.Prosecution: We’re not applying new or novel interpretations to criminal law. Every single count is supported not just by the text but also by a vast amount of precedent. You say the age of our precedent is a problem. I say it’s an advantage. The law has already been interpreted. It is already clear. There is no legal ambiguity in casting fake electoral votes or in utilizing clear threats of criminal prosecution to try to coerce state officials to change the outcome of an election.Your best legal argument rests on what the law might be. Our legal argument rests on what the law actually is. You need to disrupt American law to prevail. We simply need to persuade a conservative court to remain conservative, to follow its instincts to resist radical change.Defense: We’ve not yet begun to fight. I’ve barely scratched the surface of your proof problems. Your indictment might fool Democrats and those Never Trump traitors, but it doesn’t fool me. For example, in Paragraph 66 of the indictment, you say that “fraudulent electors convened sham proceedings” to cast “fraudulent electoral ballots” at the “direction” of Trump.But that’s a conclusory statement. Where is the actual evidence that he was in command of that process and not one of his lawyers and allies? You’re making a big, bold claim, and that’s going to require big, bold evidence. And that indictment just doesn’t deliver the goods.Prosecution: The indictment describes in detail Trump’s intimate cooperation with his co-conspirators. Are you arguing they were acting on their own? That Trump was just a bystander to the fraudulent efforts on his behalf? Trump was so involved in the effort to overturn the election that he made calls. He said Georgia’s secretary of state and legal counsel faced a “big risk” of criminal prosecution if they (as we said in our indictment) “failed to find election fraud as he demanded.” He called the Republican National Committee chairwoman to put the fake electors plan in motion. Yes, Trump had free-agent allies who tried to help him steal the election, but none of the co-conspirators were free agents. They were all his partners in crime. Besides, as you well know, this indictment is the summary of our evidence, not the sum total of our evidence. Not only do we possess the evidence sufficient to make that claim; the grand jury is still at work.I think this exercise spotlights the most important issues, for now. Both sides have barely begun to fight, and the public has barely begun to consider the full range of evidence and arguments in the case.Moreover, this piece doesn’t deal at all with the effect of the prosecution on the body politic. On Tuesday, The Times published a compelling piece by a Harvard Law School professor, Jack Goldsmith, warning of the consequences of prosecuting a former president during an election campaign.My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts — not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Ron DeSantis Faces Four Main Challenges Ahead of 2024

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      Ron DeSantis has cut back, reorganized, reset and refocused his presidential campaign. We talked to Republican strategists about what they think he ought to do next.The presidential campaign of Gov. Ron DeSantis is clearly in a downward spiral, whether measured by polling, internal upheaval, shifting strategies or money woes.Early this year, Mr. DeSantis seemed to have a clear path to the Republican nomination: He was a political fighter in the mold of Donald J. Trump, but without the chaos and with a solid record of conservative achievements in Florida.But those best-laid plans have met reality — a Trump rebound and a crowded Republican field — and now the Florida governor is desperately struggling to regain his footing after his campaign this week announced its third major shake-up in a month.In interviews, Republican strategists with experience in presidential races (but unaffiliated with Mr. DeSantis or his 2024 rivals) diagnosed some of the top problems of his campaign.What to do about Trump?There is no way around it. Solving the Trump problem is the master key to this election, and no one has found it. Mr. DeSantis, like almost every other Republican in the race, adopted a strategy of never criticizing Mr. Trump, for fear of alienating his ardent base. The theory was that at some point Mr. Trump would disqualify himself, and Mr. DeSantis would be positioned to inherit his supporters.But now, after three criminal indictments have failed to dent Mr. Trump’s popularity with Republican voters, pressure is mounting on Mr. DeSantis to stop pretending Mr. Trump isn’t in the race and take him on directly.“The people who want Trump don’t need a mini-me Trump,’’ said Barbara Comstock, a former Republican member of Congress from Virginia, who is not a fan of either the former president or Mr. DeSantis.This week, Mr. DeSantis took a small step in the direction of taking on Mr. Trump by stating plainly that “of course” he lost the 2020 election, a position that conflicts with what many Republican voters believe.“Trump is the de facto Republican incumbent, and in order to beat an incumbent you have to give voters a fire-able offense,” said Terry Sullivan, who managed Senator Marco Rubio’s presidential campaign in 2016.A related problem: Mr. DeSantis has failed to captivate voters, either with a charismatic stump speech or with a new charm offensive in which he wades into crowds, poses for selfies and engages in chitchat. Sarah Longwell, who conducts focus groups of Republican voters, said that recently she had witnessed something novel: Not one G.O.P. voter brought up Mr. DeSantis’s name in the groups. “People are like, we gave you a look and we’re not that interested,’’ she said.A muddled message.“The No. 1 failing for any campaign, and it’s clearly DeSantis’s problem — what is his elevator pitch?” said Dave Carney, a New Hampshire-based strategist who has advised multiple presidential campaigns.One day, Mr. DeSantis is reminding voters about taking on the Walt Disney Company over what he views as “woke” corporate meddling. Another day, he is picking a fight with Representative Byron Donalds, the only Black Republican in Florida’s congressional delegation, over the state’s new standards for teaching Black history.These headline-making fights may break into the Trump-dominated media coverage, but Mr. Carney said they hadn’t given voters a slogan they remember.“You have to have a message that’s relatable and simple and that you can communicate,’’ he said. “‘Morning in America,’ ‘Are you better off than four years ago?,’ Make America Great Again.’”Just what that should be, of course, is up for debate.Mr. Sullivan said he thought Mr. DeSantis was on point when he talks about electability. Mr. DeSantis has often suggested that Mr. Trump, now saddled with criminal charges stemming from his attempt to overturn the 2020 election, can’t win a general election.“The messaging the other day was very smart — if the election is about January 2021, and not about Joe Biden’s record, we will lose,” Mr. Sullivan said.Gail Gitcho, a consultant who worked on Mitt Romney’s presidential campaign, said Mr. DeSantis needed to talk about his achievements in Florida.“He’s got something no one else has — executive experience in a big state with countless examples of his effectiveness and conservatism,” she said. “Stop with the donor-induced shake-ups and run on his record.”Too much talk about donor-induced shake-ups?All summer, media reports have been filled with accounts of Mr. DeSantis’s struggles, fed by campaign insiders, his wealthy donors and other Republicans with a close view. It has led to steady headlines about campaign restarts and reboots and a revolving door of personnel. The coverage feeds a narrative of a campaign in trouble, which becomes self-fulfilling.Mr. Sullivan said Mr. DeSantis needed to just run the plays without discussing them.“You just have to keep your head down and execute. Win the day. Win the week. Then string them together,” he said.Putting all the chips on Iowa.In an earlier reboot, Mr. DeSantis’s campaign said it would zero in on Iowa, touring the state by bus, after spending hundreds of thousands of dollars on private air travel, and visit all 99 counties. Such a hyperlocal strategy of retail engagement with voters is traditionally what underfunded long shots pursue. But it also raises the stakes for Mr. DeSantis in Iowa, a state where he was trailing Mr. Trump by 24 percentage points in a recent New York Times/Siena College poll.Although the Iowa caucuses are still several months away, Mr. DeSantis is playing a risky expectations game, one that could make it difficult for him to rebound if he doesn’t post a strong showing in Iowa.“Clearly, they said they’re going to win Iowa,” Mr. Carney said. “I just think a campaign that talks too much, that brags about what they’re going to do — they set themselves up for traps.”Ms. Longwell, on the other hand, said an all-in-on-Iowa strategy made sense.“Iowa is hand-to-hand combat,” she said. “You have to get a story in Iowa that Ron DeSantis is running close to Trump — because now it’s all a downward death spiral.” More

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      A Bipartisan Plan to Limit Big Tech

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      More from our inbox:DeSantis Admits the Inconvenient Truth: Trump LostScenarios for a Trump Trial and the Election‘Thank You, Mr. Trump’Mushroom CloudsMacho C.E.O.s Erik Isakson/DigitalVision, via Getty ImagesTo the Editor:Re “We Have a Way for Congress to Rein In Big Tech,” by Lindsey Graham and Elizabeth Warren (Opinion guest essay, July 27):The most heartening thing about the proposal for a Digital Consumer Protection Commission is its authorship.After years of zero-sum legislative gridlock, to see Senators Warren and Graham collaborating is a ray of hope that governing may someday return to the time when opposing parties were not enemies, when each party brought valid perspectives to the table and House-Senate conference committees forged legislation encompassing the best of both perspectives.David SadkinBradenton, Fla.To the Editor:Senators Lindsey Graham and Elizabeth Warren propose a new federal mega-regulator for the digital economy that threatens to undermine America’s global technology standing.A new “licensing and policing” authority would stall the continued growth of advanced technologies like artificial intelligence in America, leaving China and others to claw back crucial geopolitical strategic ground.America’s digital technology sector enjoyed remarkable success over the past quarter-century — and provided vast investment and job growth — because the U.S. rejected the heavy-handed regulatory model of the analog era, which stifled innovation and competition.The tech companies that Senators Graham and Warren cite (along with countless others) came about over the past quarter-century because we opened markets and rejected the monopoly-preserving regulatory regimes that had been captured by old players.The U.S. has plenty of federal bureaucracies, and many already oversee the issues that the senators want addressed. Their new technocratic digital regulator would do nothing but hobble America as we prepare for the next great global technological revolution.Adam ThiererWashingtonThe writer is a senior fellow in technology policy at the free-market R Street Institute.To the Editor:The regulation of social media, rapidly emerging A.I. and the internet in general is long overdue. Like the telephone more than a century earlier, as any new technology evolves from novelty to convenience to ubiquitous necessity used by billions of people, so must its regulation for the common good.Jay P. MaillePleasanton, Calif.DeSantis Admits the Inconvenient Truth: Trump Lost Rachel Mummey for The New York TimesTo the Editor:Re “DeSantis Acknowledges Trump’s Defeat: ‘Of Course He Lost’” (news article, Aug. 8):It is sad to see a politician turn toward the hard truth only in desperation, but that is what the failing and flailing Republican presidential candidate Ron DeSantis has done.Mr. DeSantis is not stupid. He has known all along that Joe Biden was the legitimate winner of the 2020 presidential election, but until now, he hedged when asked about it, hoping not to alienate supporters of Donald Trump.Now Mr. DeSantis says: “Of course he lost. Joe Biden is the president.”In today’s Republican Party, telling the inconvenient truth will diminish a candidate’s support from the die-hard individuals who make up the party’s base.We have reached a sad point in the history of our country when we have come to feel that a politician who tells the truth is doing something extraordinary and laudable.Oren SpieglerPeters Township, Pa.Scenarios for a Trump Trial and the Election Doug Mills/The New York TimesTo the Editor:Re “Layered Case in Indictment Reduces Risk” (news analysis, front page, Aug. 6):It may well be that the special prosecutor, Jack Smith, has fashioned an indictment ideally suited for achieving a conviction of Donald Trump. However, even in the event that the trial comes before the election, there is little reason to believe that it will relieve us of the scourge of Mr. Trump’s influence on American life.First, there is the possibility of a hung jury, even in Washington, D.C. Such an outcome would be treated by Trump supporters as an outright exoneration.A conviction would not undermine his support any more than his myriad previous shocking transgressions. While the inevitable appeals would last well past the election, his martyrdom might improve his electoral chances.And were he to lose the election, he would surely claim that he lost only because of these indictments. Here he would have a powerful argument because so many of us hope that the indictments will have precisely that effect.The alternative, that he wins the election, either before or after the trial, is too dreadful to contemplate.If there is anything that can terminate the plague of Trumpism, it is for a few prominent Republicans whose seniority makes their voices important — Mitch McConnell, Mitt Romney and George W. Bush — to speak out and unequivocally state that Donald Trump is unfit for office. That they all believe this is generally acknowledged.If they fail to defend American democracy at this time, they will be complicit in what Trumpism does to the Republican Party and to the Republic.Robert N. CahnWalnut Creek, Calif.‘Thank You, Mr. Trump’Former President Donald Trump has made his 2024 race principally about his own personal grievances — attempting to convince supporters to see themselves in him.David Degner for The New York TimesTo the Editor:Re “Playing Indicted Martyr, Trump Draws In His Base” (news article, Aug. 9):Thank you, Mr. Trump, for sacrificing yourself for the greater good. And when you spend years and years and years in prison, we will never forget what you did to (oops, I mean for) us.Winnie BoalCincinnatiMushroom Clouds U.S. Department of DefenseTo the Editor:Re “A Symbol Evoking Both Pride and Fear,” by Nicolas Rapold (Critic’s Notebook, Arts, Aug. 1):Richland High School in Washington State is in an area, highly restricted during World War II, where plutonium essential to building the first atomic bombs was produced. As in areas of New Mexico, there have been numerous “downwind” cancer cases, as well as leakage of contaminated water into the Columbia River basin.Bizarrely, Richland High’s athletic teams are called the Bombers; a mushroom cloud is their symbol on uniforms and the gym floor. This must be the worst “mascot” on earth.Nancy AndersonSeattleMacho C.E.O.s Illustration by Taylor CalleryTo the Editor:Re “We’re in the Era of the ‘Top Gun’ C.E.O.” (Sunday Business, July 30):The propensity of the current class of business leaders to grab at team-building gimmicks knows no bounds. Simulating the role of fighter pilots at $100,000 a pop might give a C.E.O. a fleeting feeling of exhilaration, but it is a poor substitute for actual team-building.That happens when organizations and compensation levels are flattened to more down-to-earth levels. With some C.E.O.s pulling in pay rewards that are hundreds, if not thousands, of times more than their median employee, team-affirming commitment in the boardroom is far from genuine.Employees are not fooled by C.E.O.s trying to play Top Gun for a day, and making more in that short time than most employees will earn in a year.J. Richard FinlayTorontoThe writer is the founder of the Finlay Center for Corporate and Public Governance. More

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      DeSantis, With a Subtle Maneuver, Hides His Small-Dollar Donations

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      The campaign of the Florida governor, who is known to be reliant on rich donors, worked with a Republican fund-raising powerhouse to prevent the disclosure of information on small contributors.When WinRed, the company that processes nearly all online Republican campaign contributions, recently released its enormous trove of donor data for the first half of the year, donations were conspicuously absent for one presidential candidate: Gov. Ron DeSantis of Florida.It was no technical glitch. The DeSantis campaign worked with WinRed in a way that prevented the disclosure of donor information, ensuring that the campaign’s small donors would remain anonymous, according to a person familiar with the campaign.The arrangement appears to be the first of its kind for a presidential campaign since WinRed’s founding four years ago and could presage a return to an era in which far less information on small donors is made public, at least for Republicans.Representatives for Mr. DeSantis declined to describe details of the arrangement. The person familiar with the campaign said the aim was to prevent other campaigns from poaching Mr. DeSantis’s donors.But the move has other effects, including obscuring exactly how many — or how few — online donations Mr. DeSantis has received.His dependency on larger contributors has been a source of concern for his campaign, after his first financial report last month revealed that less than 15 percent of his $20 million haul had come from donors who gave less than $200. News emerged on Tuesday that Mr. DeSantis had replaced his campaign manager as part of a broad shake-up.Matt Mackowiak, a Republican consultant based in Texas, said he was not convinced of the value of concealing small donors — “Generally, small donors don’t care about disclosure,” he said — but he also did not see much of a threat to transparency in the campaign’s arrangement.“To me, the single most important aspect of the transparent philosophical debate is: Is somebody buying influence?” Mr. Mackowiak said. “You’re not going to buy anyone with a $200 or less donation.”Until recent years, he noted, small donations were never broken out in federal campaign finance disclosures. In a sense — and to the all but certain dismay of those who push for transparency — the move by the DeSantis campaign suggests a return to a previous era when those contributions remained anonymous.WinRed was set up in 2019 as a conservative answer to ActBlue, a nonprofit group that since 2004 has served as the central platform to process online donations for Democratic candidates and causes. ActBlue has been widely credited with establishing Democratic dominance in small-dollar fund-raising, and Republicans had long been eager for their own version.Unlike ActBlue, the heart of WinRed is a for-profit company. But its political action committee, like ActBlue’s, has served as a conduit for contributions to campaigns. Donors would give to the campaign through a webpage run by WinRed, which then distributed the money to it.In the 2020 election cycle, WinRed received and forwarded over $2.2 billion in online contributions; ActBlue was a conduit for more than $4.2 billion.While political campaigns are not required to itemize contributions under $200, the PACs for WinRed and ActBlue have to provide information on every donor. Their filings offered the public the only details about campaigns’ small-dollar contributions.WinRed has fought the requirement that it disclose every donor. It is currently in litigation with the Federal Election Commission and seeks to raise the threshold to $200, arguing that the requirement is burdensome and is not in keeping with the drastic growth of small-dollar donations.A spokesman for WinRed did not respond to requests for comment.WinRed recently started offering “merchant” accounts, in which the company acts not as a conduit, but as a typical payment processor. Mr. DeSantis’s campaign chose this option, the person familiar with the campaign said, cutting WinRed’s PAC and its disclosure requirements out of the picture.It appears to be the first time a presidential campaign has opted for this arrangement. The former chief executive of WinRed, Carl Sceusa, is currently the chief financial and chief technology officer of the DeSantis campaign.The difference in disclosure is vast.WinRed’s filing last week showed that Mr. Trump’s main fund-raising committee processed 1,328,930 donations in the first six months of the year. It showed nothing about Mr. DeSantis, whose campaign reported only 15,462 donations above $200 on his campaign’s Federal Election Commission filing. There was no information about the donors who gave less than $200. His campaign has said he has topped the 40,000 donors needed to make the first debate stage, but only a fraction of them are now disclosed.“Using the payment processor model allows them to not have to itemize those donors,” said Adav Noti, senior vice president and legal director at the Campaign Legal Center, a nonprofit campaign ethics group. “That’s a business question, not a legal question.”The vendor arrangement raises some legal questions, Mr. Noti said: First, whether WinRed’s merchant arm is, itself, a de facto political group, which would have to register as a political action committee.“F.E.C. rules are pretty clear that payment processors can’t be partisan,” Mr. Noti said.The strategy may be most notable for what it could suggest to competitors about Mr. DeSantis’s campaign.“To the extent that unitemized contributions could tell you something about a candidate that might be valuable, it’s that they are regional, in one place,” Mr. Mackowiak, the strategist, said. “The only thing I can think of is that their small donor base may be primarily Florida-based, and they didn’t want to appear like a regional candidate.” More

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      With National Monument Designation, Biden Tries to Balance Electoral Realities

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      The president has highlighted his climate actions as a way to spur domestic energy production and create blue-collar jobs, while nodding to environmental activists and tribal leaders.The president designated nearly a million acres of land in Red Butte, Ariz., as a national monument.Kenny Holston/The New York TimesAfter spending most of his appearance near the Grand Canyon describing how his fifth national monument designation would preserve sagebrush, bighorn sheep and 450 kinds of birds, President Biden said on Tuesday that protecting the land long held sacred by Native American leaders was not just a matter of the environment.“By creating this monument, we’re setting aside new spaces for families to bike, hunt, fish and camp, growing the tourism economy,” Mr. Biden said as he declared nearly a million acres near the Grand Canyon as a national monument, with the 300-million-year-old “majestic red cliffs” serving as his backdrop.“Preserving these lands is good not only for Arizona, but for the planet,” he said. “It’s good for the economy.”Mr. Biden has often framed his climate investments as a means to spur domestic energy production, one that would create thousands of jobs for blue-collar workers. But when he traveled to Arizona to announce a permanent ban on uranium mining in the area, he also nodded to other crucial constituencies: environmental activists and tribal leaders who have pressed the White House to make good on its ambitious campaign promises to protect the environment and ancestral homelands.The White House has presented Mr. Biden’s sales pitch for legislation aimed at cutting planet-warming greenhouse gas emissions, the Inflation Reduction Act, as a job-growth machine to appeal to the middle class. But the administration knows that those who care about protecting the environment and preserving lands stripped from tribal nations are crucial voters, particularly in the battleground state of Arizona.The balancing act was reflected during Mr. Biden’s visit to the mountainous range of Red Butte near the Grand Canyon, where he spoke of job creation while also acknowledging environmental activists and tribal leaders.Indigenous people, Mr. Biden said, “fought for decades to be able to return to these lands to protect these lands from mining and development to clear them of contamination to preserve their shared legacy.”The Biden administration has argued that the Grand Canyon region contains just about 1.3 percent of the country’s uranium reserves.Kenny Holston/The New York TimesThe White House hopes Mr. Biden’s message is received by not just Native Americans but also young and climate-conscious voters, many of whom have yet to be fired up by his economy-first message.About 71 percent of Americans say they have heard “little” or “nothing at all” about the Inflation Reduction Act one year after it was signed, according to a Washington Post-University of Maryland poll. And most Americans — 57 percent — disapprove of Mr. Biden’s handling of climate change, according to the poll. Recent polls also show that voter sentiment on the economy continues to drive the president’s negative approval ratings.Mr. Biden has been inconsistent in his efforts to protect federal lands and waters. This year he approved the Willow project, a large oil-drilling development in the pristine Arctic wilderness. The administration also approved more oil and gas permits in its first two years than President Donald J. Trump did in his, and agreed to a series of compromises in the Inflation Reduction Act, Mr. Biden’s signature climate law, to allow offshore oil and gas leasing in the Gulf of Mexico and Alaska’s Cook Inlet.“It’s a pick-your-battle environment,” said Joel Clement, a former policy director at the Interior Department.Mr. Clement, who is now a senior program officer at the Lemelson Foundation, a philanthropic group funding work on climate change, said he believed the Biden administration was intent on protecting Indigenous lands and culture, and also on blocking as much fossil fuel production as it could.But, he said, “The calculus revolves around how much damage they can weather from the right on each of these things.”The Biden administration needs to amp up its climate change messaging as campaign season heats up, said Anthony Leiserowitz, the director of the Yale Program on Climate Change Communication, which has conducted surveys on Americans’ climate opinions since 2007.While the message about jobs and the economy might be a winning strategy in a general election, Mr. Leiserowitz said Mr. Biden’s base of climate-focused voters wanted to see the president use the bully pulpit to talk more about replacing fossil fuels, the burning of which is dangerously heating the planet.“They have more teachable moments to talk about climate change with the American people than any other president in history because we are getting hit every day by another two-by-four of climate extremes on steroids,” Mr. Leiserowitz said.Mr. Biden leaned into that message on Tuesday, describing his efforts to combat the effects of climate change, including investing $720 million for Native American communities to ease the impact of droughts and rising sea levels. Standing before an Arizona delegation as well as tribal leaders donning traditional attire, Mr. Biden framed the Inflation Reduction Act as the biggest investment in climate conservation and environmental justice on record.But his announcement also highlighted the risks Mr. Biden faces as he seeks to conserve lands while also promoting the expansion of clean energy. Uranium is a fuel most widely used for nuclear plants, a key source of energy that does not produce carbon dioxide emissions.As countries work to curb planet-warming greenhouse gasses, competition for uranium is expected to increase, according to experts. The United States imports the majority of its uranium, from Kazakhstan, Canada, Australia and Russia.Paul Goranson, the chief executive of enCore Energy, which has mining claims in the Grand Canyon area, said the uranium found there is of a higher grade than in other parts of the United States. Cutting off that supply, he said, will keep the United States reliant on imports, which could have an impact on national security and hurt the Biden administration’s ability to develop zero-emissions energy sources to fight climate change.“It seems the timing is a bit inconsistent with the president’s objectives for clean energy,” Mr. Goranson said. “It doesn’t seem to be aligning with his stated clean energy targets.”The Biden administration has argued that the Grand Canyon region contains just about 1.3 percent of the country’s uranium reserves. Environmental groups also noted that because the area was under a 20-year moratorium imposed during the Obama administration, no mining would have occurred for at least a decade anyway.Republicans blasted Mr. Biden’s decision this week. Senator John Barrasso of Wyoming, the top Republican on the Senate Energy and Natural Resources Committee and a supporter of nuclear energy, accused the president of “supporting our enemies” by blocking uranium production. American companies currently pay around $1 billion a year to Russia’s state-owned nuclear agency to buy uranium.The White House’s balancing act of framing its agenda as a boon to domestic investment and job growth, as well as a way to combat climate change and advance environmental justice, will continue throughout the re-election campaign, according to senior White House officials. After Mr. Biden was endorsed by the four largest environmental groups in the United States in June, the president celebrated days later at a rally for union workers.“The investment isn’t only going to help us save the planet, it’s going to create jobs — lots of jobs, tens of thousands of good-paying union jobs,” Mr. Biden reminded A.F.L.-C.I.O. members at the rally in Philadelphia.That strategy was evident on Tuesday. As Mr. Biden talked about the importance of protecting the country’s natural wonders, Vice President Kamala Harris joined Labor Department officials in Philadelphia to speak to construction workers about efforts to raise their wages.And after the event at the Grand Canyon, Mr. Biden traveled to Albuquerque, where he will describe how his signature climate and clean energy bill also creates manufacturing jobs in the clean energy sector.A group gathered to see President Biden.Kenny Holston/The New York TimesJohn Leshy, a public lands expert who served in the Interior Department during the Clinton and the Carter administrations, said trade-offs between developing renewable energy to fight climate change and conserving and protecting public lands will only increase in the years to come.“We’ve got a catastrophe in the offing if we don’t move rapidly to decarbonize,” Mr. Leshy said. “I don’t think that means opening up the Grand Canyon to uranium mining everywhere, but in some situations it does mean we’re going to have to grit our teeth” to allow for more minerals development, he said.For Carletta Tilousi, a member of the Havasupai Tribe, Mr. Biden’s monument designation means that her ancestors “are finally going to be feeling rested.”“A lot of these areas are in places where there were once gathering sites of tribal people and many years ago, hundred years ago, where our ancestors once roamed and we still roam today here,” she said. “But I believe those areas are very important to our existence.” More

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      The ‘Never-Again Trumper’ Sham

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      Shortly after last year’s midterms, when Republicans failed to take the Senate and eked out only a thin majority in the House, Paul Ryan gave an interview to ABC’s Jonathan Karl in which he described himself as a “Never-Again Trumper.” It’s worth recalling what Ryan and other Republicans said about Donald Trump the first time he ran to see what a sham this feeble self-designation is likely to become.In 2015, Ryan, the House speaker then, denounced Trump’s proposed Muslim ban as “not conservatism,” “not what this party stands for” and “not what this country stands for.” Then-Gov. Mike Pence of Indiana privately complained that Trump was “unacceptable,” according to the G.O.P. strategist Dan Senor, before he accepted the vice-presidential nomination. Ted Cruz called Trump a “sniveling coward” for insulting his wife, Heidi, before declaring that “Donald Trump will not be the nominee.”They all folded — and they all will fold again. Their point of principle wasn’t that Trump had crossed so many moral and ethical lines that they would rather live with a Democrat they could honorably oppose than a Republican they would be forced to dishonorably defend. Their point was simply that Trump couldn’t win. When he did, they become powerless to oppose him.Seven years later, they’ve learned nothing.In his interview with ABC, Ryan said he was “proud of the accomplishments” of the Trump years, citing tax reform, deregulation, criminal-justice reform, and conservative Supreme Court justices and federal judges. So why oppose Trump in 2024? “Because I want to win,” Ryan said, “and we lose with Trump. It was really clear to us in ’18, in ’20 and now in 2022.”The best that can be said about this argument is that it’s a half-clever way for Ryan and the type of “normal Republicans” he represents to salute and absolve themselves at the same time — to claim, in effect, that the conservative policy wins of the Trump years were all their doing, while the Republican electoral defeats were all his.But the analysis is shaky in its premises and dangerous in its implications, at least to Republicans like Ryan. Shaky, because does anyone remember the conservative policy achievements of the Romney-Ryan administration?Trump, the man everyone assumed couldn’t win in 2016, did. He brought millions of voters into the G.O.P. fold, including former Barack Obama and Bernie Sanders supporters. Did his manners and methods repel an even larger share of voters, particularly centrists who in previous years might have voted for Republicans? Probably. But the inescapable fact is that without MAGA voters there would have been no victory in 2016 and none of the conservative victories of which the former speaker is proud. For Ryan to say “we lose with Trump” may or may not be right, but it fails to wrestle with the fact that Republicans can’t win without him.As for the danger of Ryan’s argument, it’s that it fails to come to grips with what really ails the Republican Party.The trouble for Republicans does not lie in the difficulty of holding together a fractious coalition of MAGA and non-MAGA conservatives. That would be politics as usual in any major party. It lies in the depressing combination of MAGA bullies and non-MAGA cowards, with people like Ryan being a prime example of the latter. If there’s anything more contemptible than being a villain, it’s being an accomplice — less guilty than the former, but also less compelling, confident and strong.That’s what became of Ryan’s side of the G.O.P. in the Trump years. Every policy victory they helped achieve was a political victory for Trump and his side of the party. But every Trumpian disgrace was a disgrace for the Ryan side but not for Trump. The 2020 election lies and Jan. 6 and Trump’s blatant obstruction of justice in the documents case may trouble the conscience of Ryan. The MAGA crowd? They’re cool with it.This is why Trump is now cruising toward renomination, much to the chagrin of those conservatives who assumed he would have faded away by now. With the honorable exception of Asa Hutchinson and the intriguing one of Chris Christie, none of Trump’s most notable so-called opponents have actually bothered to oppose him. Vivek Ramaswamy wants to be a younger version of Trump; Ron DeSantis an angrier version. But just as people will prefer a villain to an accomplice, they’ll take the original over the imitation.Even at this point, it may be too late to change the fundamental dynamic of the Republican race, particularly since every fresh criminal indictment strengthens Trump’s political grip and advances his argument that he’s the victim of a deep-state conspiracy.But if the Paul Ryans of the conservative world want to make a compelling case against Trump, it can’t be that he’s unelectable. It’s that he’s irredeemable. It’s that he brought shame to the party of Lincoln; that he violated his oath to the Constitution; that he traduced every value Republicans once claimed to stand for; and that they will not support him if he is the Republican nominee.That may not keep Trump from the nomination or even the presidency. But on any road to redemption, the starting point has to be the truth, most of all when it’s hard.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Two Adverbs That Define Biden and Trump

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      Akshita ChandraPresidents are forever linked to their most memorable lines or slogans, phrases that become inseparable from their passage through history. Ronald Reagan proclaimed morning in America. Barack Obama promised America hope and change. Donald Trump pledged to make America great again. Our leaders also utter words they might rather take back — say, about lip-reading or the meaning of “is” — but their go-to lines can capture their message, signal their attitude and even betray their worldview.Joe Biden has long settled on his preferred pitch. “We are living through a battle for the soul of this nation,” he wrote in 2017, after the darkness of Charlottesville. Biden highlighted the battle for that soul again in his 2020 and 2024 campaign announcements and has revisited it in multiple speeches. It is ominous and a bit vague — John Anzalone, Biden’s 2020 pollster, complained during that race that no one knows what “soul of America” means and that the line “doesn’t move the needle.” But it does provide the rationale for Biden’s candidacy and presidency. Under Trump, Biden contends, America was becoming something other than itself.Yet there is another Biden line — a single word, really — that also stands out, and it comes up whenever this president reflects on that American soul, on what the country is and what it might become. It is still.“We have to show the world America is still a beacon of light,” Biden wrote in that same post-Charlottesville essay.“We have to prove democracy still works — that our government still works and we can deliver for our people,” he said in a speech to a joint session of Congress in April 2021.“We are still an America that believes in honesty and decency and respect for others, patriotism, liberty, justice for all, hope, possibilities,” the president said in a speech in September at Independence Hall in Philadelphia, where he asserted that the foundations of the Republic were under assault by MAGA forces. “We are still, at our core, a democracy.”There is an insistent quality, almost a stubbornness, to Biden’s “still.” Its implicit assumption is that many Americans may no longer believe in the nation’s professed virtues or trust that they will last much longer, that we must be persuaded of either their value or their endurance. To say that America is a democracy is to issue a statement of belief. To say that we are still a democracy is to engage in an argument, to acknowledge — and push back against — mounting concerns to the contrary.The contrast between Biden saying America is still a democracy and Trump vowing to make it great again is more than a quirk of speechwriting. What presidents say — especially what they grow comfortable repeating — can reveal their underlying beliefs and basic impulses, shaping their administrations in ways that are concrete, not just rhetorical. Biden’s “still” stresses durability; Trump’s “again” revels in discontinuity. “Still” is about holding on to something good that may be slipping away; “again” is about bringing back something better that was wrested away. Both candidates, now in a dead heat in the 2024 presidential race, look to the nation’s past but through divergent lenses. It’s the difference between America as an ideal worth preserving and an illusion worth summoning.Biden’s use of “still” is both soothing and alarming. It connotes permanence but warns of fragility. The message of “still” is that we remain who we are, but that this condition is not immutable, that America as Biden envisions it exists somewhere between reality and possibility. “If we do our duty in 2022 and beyond,” Biden said ahead of the midterm elections last year, “then ages still to come will say we — all of us here — we kept the faith. We preserved democracy. We heeded not our worst instincts but our better angels. And we proved that for all its imperfections, America is still the beacon to the world.”Remember, it’s only when things are wretched that presidents reach for Lincoln. In good times, no one gives a damn about our better angels.Americans do recognize the threat to our system of government, but they just don’t seem that energized by the dangers. A New York Times/Siena College poll last fall found that more than 70 percent regarded American democracy as being at risk, but only 7 percent thought that was the nation’s most important problem. Biden’s message demands that we care. “Democracy is hard work,” the president said at a Summit for Democracy meeting in March.In that speech, Biden also indulged in a bit of a victory lap. “Here in the United States, we’ve demonstrated that our democracy can still do big things and deliver important progress for working Americans,” he said, citing lower prescription-drug costs, new infrastructure investments, electoral reform and his administration’s efforts against climate change. It was an answer to Biden’s speech before Congress two years earlier, when he said we had to prove that democracy still functions. “It’s working,” he told the summit. “It’s working.”But three months later, after the Supreme Court declared affirmative action in college admissions unconstitutional, the president reiterated his concern that the basic American promise of equal opportunity remains unfulfilled. “The truth is — we all know it,” he stated. “Discrimination still exists in America. Discrimination still exists in America. Discrimination still exists in America.” That third and final still was especially vociferous.Even as Biden affirms what he believes we still are, he also reminds us of all he believes we still must do — his “still” entails duty along with reassurance. The president can declare, as he did in 2021, that “it’s never ever, been a good bet to bet against America, and it still isn’t,” but the need to state it so emphatically acknowledges that the stakes are rising, and that the odds are not improving.Over the years, Biden has offered varying visions about what America still means to him. In his 2007 memoir, “Promises to Keep,” he reflected on the nation’s ability to inspire the globe after a visit to a refugee camp in Chad. “We sometimes forget that America is the one country in the world that still shimmers, like that ‘shining city on the hill,’ as a promise of a brighter tomorrow,” he wrote. But in Evan Osnos’s 2020 book, “Joe Biden: The Life, the Run and What Matters Now,” Biden considered a different vision of what America still is. “Watching [George] Floyd’s face pinned against that curb and his nose being crushed, I mean, the vividness of it was, like, ‘Holy God. That still happens today?’”Biden’s “still” was once a contrast to the plight of other countries; now it is about competing visions of our own.In Jon Meacham’s 2018 book, “The Soul of America,” that presidential biographer and Biden wordsmith points to the “universal American inconsistency” of upholding rights and freedoms for some but not others. “The only way to make sense of this eternal struggle,” Meacham concludes, “is to understand that it is just that: an eternal struggle.”At times, Biden seems torn over whether the struggle is eternal or temporary. In his 2017 essay on the battle for the soul of the nation, he noted that charlatans and political con artists “have long dotted our history,” invariably blaming immigrants for our troubles and capitalizing on the hopelessness and despair of struggling communities. But in the video launching his 2020 campaign, he expressed confidence that history will deem Trump an “aberrant moment” in the national timeline, and only if Trump was granted eight years in the White House would he “forever and fundamentally” transform the national character. In other words, vote for Biden and America would still be America.Of course, Biden didn’t say Trump would need eight consecutive years to remake the nation; two nonconsecutive terms could prove even more definitive. That would mean that we tried Trump, attempted an alternative, and then decided we wanted him back after all. It would mean we chose Trump, again.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Prosecution of Donald Trump May Have Terrible Consequences

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      It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.But even if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated.This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele Dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether the prosecution of Mr. Trump is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances, and thus amplify their impact.These are some of the reasons the Justice Department, however pure its motivations, will likely emerge from this prosecution viewed as an irretrievably politicized institution by a large chunk of the country. The department has been on a downward spiral because of its serial mistakes in high-profile contexts, accompanied by sharp political attacks from Mr. Trump and others on the right. Its predicament will now likely grow much worse because the consequences of its election-fraud prosecution are so large, the taint of its past actions so great and the potential outcome for Mr. Biden too favorable.The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will likely inspire ever-more-aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposite party, to the detriment of sound government.It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.Many of these consequences of the prosecution may have occurred in any event because of our divided politics, Mr. Trump’s provocations, the dubious prosecution of him in New York State and Mr. Smith’s earlier indictment in the classified documents case. Yet the greatest danger comes from actions by the federal government headed by Mr. Trump’s political opponent.The documents case is far less controversial and far less related to high politics. In contrast to the election fraud case, it concerns actions by Mr. Trump after he left office, it presents no First Amendment issue and it involves statutes often applied to the mishandling of sensitive government documents.Mr. Smith had the option to delay indictment until after the election. In going forward now, he likely believed that the importance of protecting democratic institutions and vindicating the rule of law in the face of Mr. Trump’s brazen attacks on both outweighed any downsides. Or perhaps he believed the downsides were irrelevant — “Let justice be done, though the heavens fall.”These are entirely legitimate considerations. But whatever Mr. Smith’s calculation, his decision will be seen as a mistake if, as is quite possible, American democracy and the rule of law are on balance degraded as a result.Watergate deluded us into thinking that independent counsels of various stripes could vindicate the rule of law and bring national closure in response to abuses by senior officials in office. Every relevant experience since then — from the discredited independent counsel era (1978-99) through the controversial and unsatisfactory Mueller investigation — proves otherwise. And national dissensus is more corrosive today than in the 1990s, and worse even than when Mr. Mueller was at work.Regrettably, in February 2021, the Senate passed up a chance to convict Mr. Trump and bar him from future office, after the House of Representatives rightly impeached him for his election shenanigans. Had that occurred, Attorney General Merrick Garland may well have decided not to appoint a special counsel for this difficult case.But here we are. None of these considerations absolve Mr. Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More