1 year ago
A lot can happen in a year, and Democrats worried about Joe Biden’s lackluster showing in polls against Donald Trump are hoping it will — in courtrooms across America.
Prosecutors currently want Trump to stand trial in three separate felony cases next March alone (over Jan. 6, the Stormy Daniels hush payments, and the Georgia election case), and then there’s the classified documents case slated for May.
One felony trial would be extraordinary given the fact that we’ve never seen such a thing before with a former president. Four is almost unfathomable, and would have been utterly unthinkable from the perspective of just a couple of years ago.
Democrats figure — or at least hope — that a conviction or two will finish Trump and make up for Biden’s vulnerabilities. This isn’t an unreasonable expectation, but they shouldn’t bank on it.
The politics of Trump’s legal troubles aren’t as clear cut as Democrats believe. Much of the public is already taking the indictments with a grain of salt. Regardless, it’s not obvious that the courtroom action will loom larger for voters than the traditional presidential issues of the economy and foreign affairs.
The walls could finally close in on Trump in the form of a felony conviction, and he still could win the presidency next year.
Consider the civil fraud case in Manhattan that has gotten so much attention in recent weeks. The coverage has all been about how badly it’s gone for Trump, who has made angry press statements, been sanctioned by the judge, stormed out of the courtroom and taken the stand to blast the proceedings in long, discursive answers.
There’s no doubt that he’s going to lose (indeed, to be technical about it, has already lost since this trial is just about the penalty). But Trump is fighting on another dimension. His atypical courtroom behavior is meant to underline that this is not a typical legal proceeding, which, indeed, it isn’t.
It’s not usual for a prosecutor, as New York State attorney Letitia James did, to promise to go after a political opponent while on the campaign trail, assailing him in the harshest terms as a “con man” and “illegitimate president.” This is not conducive to a sense of fair and even-handed justice.
It’s not usual for a judge, as Arthur Engoron did, to declare a guilty verdict at the beginning of the trial, rather than the end.
It’s not usual for a judge — severely provoked, to be sure — to declare that he’s not there to listen to the testimony of the central witness as he did when Trump took the stand.
After his testimony, Trump’s lawyer Alina Habba used this material to strike at the legitimacy of the trial as such.
Now, did Trump exaggerate his assets? Yes, of course he did. Would anyone else have been prosecuted for these infractions? No, almost certainly not.
Federal prosecutors and Manhattan District Attorney Alvin Bragg, who both looked at it extensively, took a pass on trying to make a criminal case. Then James picked it up as a civil case, which, notably, has a lower standard of proof.
She also has used the incredibly broad New York statute, §63(12). Conveniently, the statue doesn’t require fraudulent intent or anyone having been defrauded. Despite being on the books since 1956, as my colleague and former prosecutor Andy McCarthy points out, it had never been used in a circumstance such as this before, involving inflated valuations without any harm to the supposed victims.
After more than a half-century, it so happens that Trump is the test case. It should be easy to understand why he and his supporters don’t believe that this is a strictly neutral exercise in justice.
Since Engoron ascertained Trump’s guilt at the outset, the real question at the trial is about the penalty. James wants to disgorge $250 million from Trump’s business on the theory he ripped off financial institutions that gave him lower interest rates. But Trump didn’t default on those loans, and these institutions would have or should have done their own due diligence as a matter of course. Regardless, none of them thought they were dealing with George Bailey.
This is a classic case of “show me the man and I’ll show you the crime” justice. Once again, there’s a race to the bottom between Trump, who thinks he can say and do anything and get away with it, and his enemies, who are willing to toss aside their own vaunted norms in the hopes of nailing him.
This was the dynamic all during Trump’s presidency, and now it’s even more intense and high stakes with his freedom at risk.
How will this play next year if Trump is the Republican nominee?
An ABC poll found 51 percent of respondents say the Jan. 6 charges are “very serious” (and another 14 percent somewhat serious), whereas 46 percent say they are politically motivated. There was a similar picture after the Georgia charges, when 50 percent said Trump should drop out and 49 percent said the charges were political.
This mixed bag is hardly catastrophic for Trump. But if he is convicted of a felony, the polling suggests it would be very bad for him. A Quinnipiac poll back in August found that 68 percent of people think someone convicted of a felony shouldn’t be eligible to be president. A Reuters/Ipsos poll found that that 45 percent of Republicans say they wouldn’t vote for him if he were convicted of a felony by a jury.
Whether this sentiment will hold after a conviction is uncertain. It’s quite possible that a conviction, like so many other events in our politics, will be shocking in the immediate aftermath and then absorbed into the endless news cycle like everything else. In other words, Access Hollywood redux.
There are other reasons a conviction might be survivable. The New York Times poll found that by a 17-point margin people think Trump helped them personally and by an 18-point margin Biden has hurt them personally. If public opinion continues to be that stark, will voters really put the question of their personal welfare aside because, say, Special Counsel Jack Smith has successfully prosecuted Trump on a complex legal theory that he defrauded the United States with his conduct after the 2020 election?
The cases also may not build to a grand crescendo next year, as hoped, but reach a point of diminishing returns. We’ve had a lot of motorcades to courthouses, already. And a couple of guilty findings already. Perhaps people care more about the Jan. 6 case scheduled for March, but it may be that it all becomes an undistinguished blur, with appeals layered on top if Trump is found guilty.
In political terms, Trump doesn’t have to win the debate over his alleged criminal misdeeds so much as fight it to a draw. In a debate, you can imagine Biden repeatedly calling Trump a convicted felon, and Trump responding, “Yeah, at the hands of your own Justice Department.” Is there necessarily a clear winner in that argument?
Also, Biden has his own troubles. He’s not going to be charged with crimes in his family influence-peddling scandal, let alone go on trial. But it’s not as though Democrats are running an ethically pure-as-snow candidate against a potential felon. On top of his other weaknesses, Biden’s family clearly leveraged millions of dollars from shady foreign actors on the promise of access.
All that said, Republican would be better served to nominate a less risky candidate. But Democrats should be aware that one of the things that might happen over next year is that they are shocked by all of Trump’s court dates not having the political effect they expected.
English (US)