Would Delay in the Trump Criminal Cases Truly Be a Bad Thing?
Today is a break between hand-downs in the Supreme Court's annual decision-palooza, with more rulings to come tomorrow and possibly on Friday. With this respite upon us, I will turn my gaze from law to politics -- or, more accurately, from discussing decisions by a Court that is desperately clinging to decreasingly plausible claims of being apolitical to analysis of nakedly partisan electoral politics. It is almost a relief to stop indulging certain people's pretenses of impartiality.
Presidential politics is, however, now openly infecting the public's perception of the criminal justice system, because Donald Trump and his cult of personality (including the House Republicans who are, among other things, discussing expunging his impeachments) have decided to treat all criminal cases as political -- whether indictments of Trump in federal court or in courts in blue states or blue cities, or the criminal treatment of Hunter Biden and Hillary Clinton. More than even the most aggressive legal realist (which is a reasonably accurate description of me) would ever have imagined, the entire system is now under assault in a way that could permanently undermine the legitimacy of any outcome -- including passive outcomes, such as decisions not to prosecute.
Again, the system has always been deeply politicized in fundamental ways, and skeptical cynics usually had the better of the arguments against people who pretended to be "calling balls and strikes." Even so, we are entering entirely new and dangerous territory. Alternative facts are giving Trumpists permission to believe that the "radical left Democrats, Marxists, communists, and fascists" (in Trump's characteristically precise and understated words) who are indicting the Republican front-runner are engaged in politics all the way down.
What happens when the institutions that are designed to guide conflicts into peaceful resolutions have been completely discredited? History knows the answer, and it is not pretty.
Within that broad and disturbing context, I want to focus specifically on what has become an unusually bipartisan consensus about the criminal cases against Trump: delays help him, and speedy trials harm him. He certainly thinks of it that way, and his life has been a long series of running out the clock and slipping away from consequences. It is often useful to see what a wrongdoer wants and to assume that he should be denied it. And in any case, justice delayed is ... well, you know.
People who are unhappy about how Trump never seems to face consequences are thus especially eager to see the criminal process move quickly now. They (I should say we, I suppose) are anxiously reading tea leaves and wondering whether the infamous Judge Aileen Cannon will make decisions designed to run the trial well into next year and perhaps even delay it until after Election Day 2024. With even the Special Counsel asking for a December 2023 starting date that would bleed into the primary election season, one might reasonably wonder whether it is already too late.
Being somewhat habitually a contrarian, however, I now want to ask: Is it in fact true that delaying Trump's trials is good for him and bad for the country? Speaking entirely from the position of a person who fears Trump's return to the Presidency and his toxic effects on the world's future, I honestly am not so sure. Indeed, I strongly doubt it.
Consider what might happen if one (or more than one) case against Trump proceeds to trial and a verdict. Imagine that he is found guilty, as seems very likely, if only because prosecutors at all levels try to bring only cases that are slam dunks. What then? Although I doubt that there are any circumstances in which Trump will not be the Republican nominee next year, being found guilty would remove the last shred of possibility that Republican primary voters would turn to anyone else. (I concede that the alternatives are no prize.)
Indeed, some Republicans are peddling the conspiracy theory that Democrats want to run against Trump and are thus pursuing the criminal inquiries entirely for their own political advantage, which is insulting and insane but also revealing about what everyone knows about Trump's anti-appeal to anyone but the MAGA base.
Even assuming that all legal appeals are resolved and that Trump is behind bars before November 5, 2024, so what? Trump will be running his campaign around a steroidal sense of aggrievement in any case, and because he can run and win as a convicted and imprisoned felon, a speedy outcome to the case changes nothing, and possibly even convinces some low-information swing voters that everyone is being "so mean" to a 77-year-old man (by then 78, actually).
In addition, the speediest of speedy trials would -- even with guilty verdicts -- become old news very quickly. We barely even stop to think anymore about how "he caused the January 6 insurrection" is a ho-hum background fact rather than disqualifying. It took about a week for the "Access Hollywood" tape to become old news. How long would it take after a guilty verdict in, say, a mere "documents case"? Three days?
Moreover, all of this analysis exists in the shadow of a victorious Trump being able to engineer a pardon for himself -- not even requiring a self-pardon, since a compliant Vice President-elect Haley or any of the others would surely play three-card Monte with two resignations sandwiched around a pardon. (How's that for a mixed metaphor?!)
Now consider what happens if even one of the cases against him goes to trial and the verdict is not guilty (or, more likely, that the jury is hung). What then? Trump will immediately declare himself vindicated. So what? After all, he always says that he is vindicated, even when he is caught on tape admitting to crimes. He is now saying, for example, that the latest tape "is actually an exoneration, rather than what they would have you believe." A huckster never breaks character.
Here, however, he would be right! Under what everyone else seems to view as the best, speedy timeline, Trump would have been tried and acquitted, months or even weeks before voters go to the polls. And surely the mainstream press would rush to scold everyone who questioned the outcome, hectoring them to accept that Trump is presumed innocent and was not found guilty. And again, they would be right.
There are plenty of us who would (correctly) respond that "there is no reason a verdict of not guilty means that Donald Trump should be President again," but can anyone seriously imagine such an argument working -- or working as well as it would need to work in an election that will again boil down to a handful of votes in a few swing states? (I am not saying that his losing the election would stop him from again trying to overturn the results, but certainly Trump being the certified winner of the Electoral College vote would not be met with a Biden-led self-coup.)
Finally, what happens if the trials are all delayed beyond the next election? Again, the current wisdom is that that would be horrible for the country. But compared to the alternatives, it is easy to see how this would be the scenario that we should prefer. Having the drumbeat of "bad facts" dribbling out over time puts Trump perpetually in a (completely familiar) state of flailing defense, claiming that he is being persecuted but unable to point to anything exculpatory -- such as a not-guilty verdict or a mistrial!This is all very cynical and tragic, because my message here is ultimately that Trump and his cultists have already irreversibly turned this into a matter of trial by election. And given that our election system is so badly messed up (from the Electoral College to voter suppression to a weak-kneed media), that means that we cannot simply hope that the majority will rule -- even though it is clear that a majority of Americans do not want Trump anywhere near the White House ever again. It also means that Trump might succeed in putting himself above the law.
But if his misdeeds will indeed be adjudicated on Election Day and not in any federal or state court, it is important to figure out what will reduce his likelihood of winning that trial. Allowing him to delay, delay, delay could be the best electoral strategy for Democrats. I am not imagining that the Special Counsel or the Biden Administration would choose to delay for those reasons, because they in fact do treat the legal system with respect and not as an extension of bare-knuckle politics. Even so, procedural losses in motion hearings could be victories disguised as defeats.
As always, Trump is his own worst enemy. If he wants more time and receives it, I will not lose any sleep at night -- or at least, no more sleep than I lose every night, worrying about the end of our constitutional democracy. Sweet dreams to all!