As Steven Taylor noted from Paris, former President Donald Trump is now a convicted felon, found guilty of all 34 counts charged in the New York City tax fraud case. As noted Tuesday, when the trial was nearing its end, I thought the evidence that Trump was guilty pretty clear, I wouldn’t have been the least bit shocked had at least one juror insisted otherwise.
Now, we wait for sentencing (scheduled for July 11) and the inevitable appeals. Again, while I think the sheer number of counts on which he was convicted and his horrendous conduct during the trial merit significant jail time, I wouldn’t be shocked if he doesn’t get it. Indeed, legal experts consulted by both NPR and CBS seem to think he won’t.
As to the politics . . . who knows? I can’t imagine this helps and, were I to hazard a guess, I’d say it hurts on the margins with the “double haters” who intensely dislike both Trump and Biden. That said, I doubt any regular OTB reader will change their vote as a result of this verdict. Most of us have long had Trump’s dishonesty and general loathesomeness factored in.
Benjamin Wittes, one of the most astute analysts of the American legal system (despite not being a lawyer) as well as one whose politics are damned near inscrutable, offers his “Thoughts on Donald Trump’s Conviction” at Lawfare.
Over the next few hours, days, and weeks, there will be countless “takes” about this man, as past and would-be president, and his convictions. There will be poll data. There will be denunciations of his prosecutors and the jurors who convicted him, and of the judge who presided over the case—many of these attacks will be reckless and ignorant, some of them dangerous. And there will be praise of all these actors too. We will hear technical claims about New York law and federal law and their interaction. We will hear claims that sound in fairness. We will hear claims that sound in politics and electoral horse race analysis. We will hear claims that sound in rage and in cries of justice and injustice.
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It matters that the United States has had a more than two-century-long tradition of not prosecuting our presidents. And it matters that the United States has now had a president whose criminality was so relentless, so dangerous, and so unrepentant as to require the abrogation of that tradition.
It matters that the United States has a system of divided sovereignty such that the federal government’s decision not to prosecute Trump for this matter did not resolve the question of whether a District Attorney in Manhattan might choose to put a variant of the same fact pattern before 12 residents of the city.
As someone who personally sat through five weeks of this case, I also want to submit that it matters that Trump had to personally sit through the same five weeks of testimony as I did. That he had to spend every day in a dingy courtroom of no particular glamor. That he could not leave. That he had to listen to other people talk about his conduct in their own words. That he could not respond when he wanted to. That he had to rise when everyone else had to rise because a judge whom he hated was walking in or because a jury whom he was not allowed to talk about publicly was filing out. That he had to sit there while his conduct was evaluated, and that the decision-makers in that evaluation—both on the law and on the criminality of his conduct—was not him but other people whom he did not and could not control.
It matters that Trump will now face sentencing for his conduct, currently scheduled for July 11. It matters that between now and then, he will have to meet with a court probation officer who will prepare a presentence report about him. It matters that this process will be, within a reasonable margin of error, the same degrading process that every other convicted felon goes through. It matters that Trump’s fate is no longer entirely his own to control, that it is—in some meaningful sense—subject to the decision of the State of New York.
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Does a criminal conviction of a past president, in fact, serve any significant democracy protective function in a prospective sense as that person seeks the presidency anew or is it just so much noise? Does Trump’s being convicted of 34 felonies make it any less likely that he will be elected president five months from now? Put another way, does the criminal law serve any meaningful role in shielding American democracy from its own populist instincts? Does it actually matter in a prospective sense?
We all once accepted as an article of faith that, of course, it matters. And there is at least some polling data that suggests a conviction will significantly change the presidential race.
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Count me at least a little bit skeptical. Polling people about whom they support is hard enough. Polling people about whom they think they will support if some event happens sometime in the future is even harder. More fundamentally, Trump’s resilience in the polls and in his party’s leadership in the face of two impeachments, his attempted forcible retention of power, his serial abuses of power, and his repeated electoral setbacks make the answer to the question of whether a conviction will matter decidedly non-obvious.
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But the prospective aspect of this conviction has other dimensions too. What would it mean for this country to have a criminal as a president? America has had its share of bad men before as leaders. We have elected leaders who—no doubt—have committed crimes. We have also had men commit crimes while in the office of the presidency. We have never, however, elected a person to the presidency in the face of a criminal conviction, let alone 34 of them, and we have never elected as president a person with an extant criminal sentence.
It is, to be sure, by no means certain that Trump will have a sentence outstanding at the time of his election—if elected he is—or his inauguration. But it is just as clearly not certain that he will not be on probation or, at least theoretically, serving time in jail.
There is no law guiding us on this question. No rule, no law, no provision of the Constitution says that we cannot put a felon in charge of our nuclear codes. Yet every instinct that restrains us from hiring mid-level national security officials who trigger minor polygraph discrepancies would seem to flash red lights about putting all of our national secrets in the hands of a man convicted of falsifying his company’s records by way of covering up payments to inconvenient women to keep them quiet.
And yet there is a powerful current in this country, perhaps a winning electoral coalition, that seems not to care. We’re about to find out exactly how much of that coalition is really committed to its apathy about Trump’s misconduct.
Writing at The Atlantic, erstwhile Republican speechwriter David Frum laments this as the “Wrong Case, Right Verdict.”
Donald Trump will not be held accountable before the 2024 presidential election for his violent attempt to overturn the previous election. He will not be held accountable before the election for absconding with classified government documents and showing them off at his pay-for-access vacation club. He will not be held accountable before the election for his elaborate conspiracy to manipulate state governments to install fake electors. But he is now a convicted felon all the same.
It says something dark about the American legal system that it cannot deal promptly and effectively with a coup d’état. But it says something bright and hopeful that even an ex-president must face justice for ordinary crimes under the laws of the state in which he chose to live and operate his business.
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We’re seeing here the latest operation of a foundational rule of the Trump era: If you’re a Trump supporter, you will sooner or later be called to jettison any and every principle you ever purported to hold. Republicans in Donald Trump’s adopted state of Florida oppose voting by felons. They used their legislative power to gut a state referendum restoring the voting rights of persons convicted of a crime. But as fiercely as Florida Republicans oppose voting by felons, they feel entirely differently about voting for felons. That’s now apparently fine, provided the felon is Donald Trump.
What has been served here is not the justice that America required after Trump’s plot to overturn the 2020 election first by fraud, then by violence. It’s justice instead of an especially ironic sort, driving home to the voting public that before Trump was a constitutional criminal, he got his start as a squalid hush-money-paying, document-tampering, tabloid sleazeball.
If Trump does somehow return to the presidency, his highest priority will be smashing up the American legal system to punish it for holding him to some kind of account—and to prevent it from holding him to higher account for the yet-more-terrible charges pending before state and federal courts. The United States can have a second Trump presidency, or it can retain the rule of law, but not both. No matter how much spluttering and spin-doctoring and outright deception you may hear from the desperate co-partisans of the first Felon American to stand as the presumptive presidential nominee of a major U.S. political party—there is no denying that now.
It’s worth noting that there are other cases pending against Trump and that he may yet face justice for his attempts to steal the 2020 election. But Frum is likely right that if Trump is re-elected, he will do everything in his considerable power to ensure that doesn’t happen.
As to the relative triviality of this case, Wittes demurs.
Triviality is a matter of opinion, of course. But I confess that as I watched it, I did not find the case trivial. I found it nauseating, a grouping of some of the least attractive and sleaziest human beings I have ever imagined in proximity to the levers of power. And critically, these were people actively and consciously engaged in an effort to corrupt an election. I came away from the trial thinking it was actually important that Trump had to answer for this conduct, whether he was convicted of it or not.
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The bottom line is that this was a more righteous case than a lot of people gave it credit for. And it has played an important role in a broader effort by multiple jurisdictions to use the criminal law as a democracy-protective instrument against Trump. It has put us in a position, five months before the election, in which we now get to find out whether the criminal law instrument is a meaningful one in the highest-stakes democracy protection efforts, either on its own or in combination with political forces.
In the grand scheme of things, paying hush money to a porn star to avoid political embarrassment and then committing tax fraud in the service of that tawdry act is as easily dismissed as committing perjury about an illicit affair with a subordinate while testifying in a case about sexually harassing a different subordinate. Both are arguably disqualifying for high office and yet easily dismissed by supporters.
To be clear, while I thought Bill Clinton and Donald Trump were both morally unfit to serve as commander-in-chief before they were ever sworn in and had that reinforced by their behavior in office, the latter’s transgressions are considerably greater. While I thought Clinton rightly impeached for perjuring himself regarding Lewinsky, that was the height of his transgressions as President. Further, while I frequently disagreed with him on policy grounds, I have no reason to doubt that he spent his presidency trying to make the country a better place. Trump, by contrast, used his office as a personal piggybank and had no interest in anything but his own power and enrichment.
While I agree with Frum that a conviction for his crimes against the society as President would, therefore, be more satisfying, I also agree with Wittes that this ain’t nothin’. It further establishes what a reprehensible human being Trump is. And if this persuades just a few thousand would-be Trump voters in the swing states to sit November out, it’ll be close enough to justice for me.
