On Mr. Trump’s Trials and Evasions

As New York City’s Manhattan Borough District Attorney Alvin Bragg’s “hush money” case against former President Donald Trump begins this week — alleging state felony crimes for falsification of business records to shield undercover (seemingly a particularly apt adjective here) payments made by Mr. Trump through his attorney, Michael Cohen, to Adult Film Actress Stephanie Clifford (a/k/a Stormy Daniels) to secure Ms. Clifford’s silence about their sexual liaison in aid of Mr. Trump’s 2016 electoral prospects – the former President and I both wish it wasn’t going forward.  Our rationales are, however, quite different.  He is terrified that he will be convicted.  I dread that he won’t be.

Those of us who believe, “No person is above the law,” and “Justice delayed is justice denied,” have been justifiably dismayed with the glacial progress of the various criminal proceedings now pending against Mr. Trump, which include not only the New York matter but the Washington, D.C. insurrection case being prosecuted by Special Counsel Jack Smith, the Georgia election interference case being prosecuted by Fulton District Attorney Fani Willis, and the allegedly felonious mishandling of classified documents charges being prosecuted in South Florida by Mr. Smith.  That said, much of the delay could have been anticipated; any prosecutor would want to be completely prepared before going to trial against the highest-profile defendant in our country’s history, and Mr. Trump has predictably effectively availed himself of every available legal maneuver to prolong each proceeding.

Although I am no longer as incensed at the delays, for the reason stated below, a preliminary vent: 

The U.S. Supreme Court’s election to consider Mr. Trump’s Presidential immunity defense in the insurrection case – after the defense was pretty summarily rejected by the D.C. trial court and the U.S. Court of Appeals – has provided unconscionable support to Mr. Trump’s efforts to evade the charges that, of all those confronting him, should be adjudicated before the election:  whether he, a current candidate for President of the United States, sought to defraud the United States in the last election.

Whether or not the substantive Georgia proceedings have been delayed by the Trump team’s claim that Ms. Willis was conflicted because she engaged in an amorous relationship with a lawyer she added to the prosecution team, I think it irrefutable that Ms. Willis’ behavior – although not legally relevant to the charges — was so egregiously ill-advised so as to take one’s breath away to the point of asphyxiation.

On the Florida case involving felonious mishandling of classified documents, Judge Aileen Cannon, a Trump appointee, has openly abetted Mr. Trump’s efforts to delay the proceedings.  This is a matter that Mr. Trump’s last Attorney General, William Barr, has opined to be almost a sure winner for the prosecution.  Judge Cannon’s actions can no longer be put down to incompetence or insecurity; she is either toxically partisan or cowed by MAGA threats.  Either way, the former president seems on the cusp of ducking an almost-certain federal felony conviction.

But – let’s put aside the rantings of an old curmudgeon.  We are where we are.  While I would have enthusiastically welcomed having all of these cases tried a year ago, and vehemently reject the notion that our criminal justice procedures should be sublimated to our electoral processes (i.e, that, as some commentators have intoned, Mr. Trump’s fate should “be left to the voters”), there is an exception to every rule, even the most hallowed.  It is vital that the outcome of our criminal judicial processes not engender sympathy for Mr. Trump, not skew the upcoming election to his benefit.  At this point, the overarching concern is not about establishing Mr. Trump’s culpability for the last election, but that he lose the next election. 

So I’m going to enter a somewhat lonely view certainly contrary to those bemoaning the effectiveness of the former President’s and his judicial allies’ dilatory legal tactics.  I’m concerned that putting him on trial this close to the election has greater potential to aid than hinder his campaign for the presidency.  My inclination is completely colored by my belief that if we remain on our current electoral arc (admittedly, a HUGE if), President Joe Biden will achieve an Electoral College victory in November even if the criminal charges against Mr. Trump have not yet been adjudicated.  However, the election is going to be that close, so any potential boost Mr. Trump might receive from any result other than a guilty verdict is best avoided if possible.  

I see three outcomes from any criminal trial commenced against Mr. Trump in what is now indisputably “Campaign Season” (including the New York prosecution starting today):

1. The very fact of the trial:  Initial advantage, Mr. Trump.  It makes him look to some swing voters like he’s being politically persecuted, and will do more to galvanize his supporters than cause swing voters to sour on him.

• Acquittal:  Could hand Mr. Trump the presidency by seemingly validating his claims of innocence and political persecution.  Even a mistrial will, as was the case with his impeachment acquittals, be wildly touted by him and his acolytes as exoneration and vindication, and boost his campaign.

• Conviction:  There are polls indicating that some Republicans claim they won’t vote for Mr. Trump if he is convicted, but if these voters are still even considering voting for him, by Election Day a conviction in the New York case will be both old news and entirely discredited by the right-wing media outlets they follow.  I agree that any convictions obtained by Mr. Smith or Ms. Willis between now and the election would seemingly doom Mr. Trump’s candidacy, but getting a conviction of any high-profile defendant is no easy task (recall O. J. Simpson, now deceased).  The risks of an acquittal or a mistrial so close to the election arguably outweigh the benefits of a trial if one believes, as I do, that electoral trends currently favor President Joe Biden.

I may be a solitary voice expressing these reservations – What other than Noise would one expect here? 😉 — but I would submit that Mr. Biden’s electoral prospects with the swing state swing voters who know – who know – that Mr. Trump is guilty of the crimes of which he’s been charged, will be enhanced if he simply argues:  “Trump’s delayed all the trials.  If he is elected, he’s going to get away with it.  Don’t let him get away with it.”  Mr. Biden’s prospects are obviously dimmer if the former president can claim legal exoneration. 

So as Mr. Bragg’s efforts commence today, let us hope he secures a conviction – and if he doesn’t, let us hope that the verdict will be rendered soon enough that it will no longer be top of mind by voters by Election Day.

I still owe these pages the post describing the grounds for my optimism about President Biden’s electoral prospects.