Editor’s Note: Patrick T. Brown is a fellow at the Ethics and Public Policy Center, a conservative think tank and advocacy group based in Washington, DC. He is also a former senior policy adviser to Congress’ Joint Economic Committee. Follow him on Twitter. The views expressed in this piece are his own. View more opinion on CNN.
Progressives may be eager to see former President Donald Trump potentially fingerprinted and told he has the right to remain silent. But let’s be clear — no one knows how the possible criminal charges against Trump will play out politically. Or even if prosecutors in New York, Georgia and Washington, DC will ultimately obtain indictments against the former president.
It may, as former New Jersey Gov. Chris Christie said last Sunday, harm Trump’s campaign for a second White House stint — “being indicted never helps anybody. It’s not a help.” Or, as National Review editor-in-chief Rich Lowry has suggested, it may have the opposite effect, serving to “rally more Republicans” to Trump’s side.
Perhaps Republican primary voters may take both routes — immediately flocking to support the former president against his perceived adversaries before being persuaded to opt for a safer, more scandal-free option once the 2024 presidential primary campaigning begins in earnest.
But the biggest political impact may be in creating a tightrope that Trump’s would-be challengers, and other Republicans interested in charting a post-Trump future, will need to walk.
For after a lifetime in the public eye, two full-scale presidential campaigns and four years in the White House, Trump’s checkered personal history and unquestioned ability to drive the media narrative are nothing new. And Republican leaders are already making plenty of hay, arguing that New York prosecutors trying to press charges for falsifying business records could be on very shaky ground.
No one can act surprised that Trump, though he has denied knowledge of the payment, may have an alleged role in falsifying records to conceal a hush-money deal over an affair with an adult film actress. And no one should be so innocent as to believe prosecutors never respond to political incentives when choosing to file charges.
But the danger facing Republicans is that they will either have to bind themselves even tighter to the mast of an intensely polarizing figure, or risk splitting the party by not coming out in his defense. Navigating between those pitfalls will require some willingness to criticize Trump, while going hammer and tongs against the likely decision to prosecute a rather arcane alleged violation of state law.
On the legal question itself, many Republicans will go on the record as calling it the politicized decision of an overzealous prosecutor. Some will be tempted to back Trump to the hilt, arguing that the party should unify against the arrayed forces of the “deep state” and the media. The diehards’ strategy, in the words of populist Republican Rep. Andy Biggs of Arizona, will be convincing rank-and-file Republicans that “[i]f they can come for Trump, they will come for you.”
The more interesting question is whether mainstream Republicans are able to unload both rhetorical barrels on the Manhattan district attorney’s office while also leaving some daylight between themselves and the former president. His one-time Vice President, Mike Pence, recently sought to straddle the fence, calling the potential charges a “politically charged prosecution,” even as he criticized Trump’s actions in inciting violent protests on January 6.
The more daring Republicans may try to ding Trump for his seamy behavior even while attacking the politicized prosecution. One of Trump’s presumed rivals for the nomination, Gov. Ron DeSantis of Florida, took a not-so-veiled shot at the former president’s behavior.
“I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair,” DeSantis told a news conference Monday, while stressing that he sees the prosecutor’s potential charges as an example of “pursuing a political agenda and weaponizing the office.” Conservative stalwart Rep. Chip Roy of Texas, who has already endorsed DeSantis despite him not even having officially announced yet, offered a similar version of this strategy on a radio show.
The ancient Greeks had a word for this kind of rhetorical move — apophasis, or, the art of bringing up a subject in a debate by claiming not to be bringing it up. Republicans who offer a response coupling implicit criticism of Trump with explicit criticism of Manhattan District Attorney Alvin Bragg offer a textbook example of the strategy.
It runs the risk of being a little too clever. DeSantis’ quip infuriated the usual MAGA online crowd, including the former president himself. But solely concentrating their rhetorical ire on the legal adventures of the Manhattan district attorney’s office, without laying out subtle critiques of Trump, would make it harder for Republicans to then run or endorse other candidates for the 2024 nomination.
Successful candidates and parties need to have a compelling story around their campaign. Without making a case, directly or indirectly, for why Trump should not be the presumptive nominee, the narrative of the Republican Party will center around Trump and his adversaries. A response that solely focuses on the sins of prosecutors in New York runs the risk of letting Trump claim the nomination by default.
After disappointing midterms in 2018 and 2022, and a lost presidential reelection bid in 2020, Republicans have hopefully learned the downside of putting all their eggs in the MAGA basket. Cementing Trump as the sole figurehead of GOP politics puts future general election victories at risk. But Republican primary voters will be quick to punish any candidates who are too eager to throw Trump under the bus.
So if charges are filed, expect a chorus of Republican voices attacking the prosecutorial overreach of a district attorney who pledged to focus on investigating the former president. But the question of how far some will go to defend Trump in his legal battle may make or break their ability to support other challengers to the Republican nomination in 2024 — and they should choose their words wisely.