Delay, Delay, Delay -- It Would Be Good for Trump to Get What He Wants
by Neil H. Buchanan
This was a big week in US politics -- arguably the biggest ever, with a former President being indicted on several serious charges that go to the very core of democracy and the rule of law.
I cannot help but point out that in Canada, where I am living for the upcoming year, the big political story of the week was that the Prime Minister and his wife announced that they are amicably divorcing. By contrast, the political conversation in the country of my birth includes questions about whether a Republican presidential candidate has gone too far by saying that he would "start slitting throats" of "all these deep state people" on Day One of his imaginary presidency. America, love it or have the president kill you because you work for it! (Or maybe that "or" should be an "and"?)
But the deranged pseudo-machismo of my former governor is a mere diversion from what is happening with regard to Donald Trump. His third indictment can reasonably be seen as The Big One, the legal case built on the voluminous evidence of his attempt to stay in office through multiple illegal means. Not charging him with inciting the violence on January 6, 2021, is plausibly a way for the prosecution to streamline the case, because it means that the case will be tried on familiar legal grounds that do not rely on novel or untested theories or applications of criminal statutes.
Similarly, it appears that this is the case that will be tried first, pushing the federal national security case and the New York criminal fraud case back in line. We do not know how the all-but-certain Georgia "just find 11,780 votes" criminal case will line up, but no matter. From what I have been able to see on television and read in the papers, there is an ebullient sense of near-joy from those who have waited for Trump to face well-deserved consequences, very much based on the idea that the special prosecutor skillfully crafted the most important case in a way that is also nearly guaranteed to be uncomplicated and speedy.
Now that this is all teed up with the most important case happening first and fastest, it seems like a good time to reassess and possibly update my argument from a few weeks ago that "I strongly doubt" that "delaying Trump's trials is good for him and bad for the country." I wrote those words when we were looking at the possibility that Judge In-the-Tank-for-Trump Cannon might manipulate her case not only by delaying but by making procedural calls that would increase the likelihood of acquittal (or a hung jury), while the Manhattan DA's case was being wrongly treated as trivial and biased by virtue of being in New York City.
Is this new case so strong and so sleek that I should change my bottom line? Was I wrong to argue that we should simply admit "that Trump and his cultists have already irreversibly turned this into a matter of trial by election"? No, even this new situation does not change the fundamental calculus of what is at stake and how it will play out.
The short version of my argument in favor of delay is that (a) there is nothing meaningful to be gained from trying to shoehorn a trial in before Election Day 2024, and (b) there is something quite serious that could be lost in pushing forward with alacrity. The latter point is simply that even the strongest case might still not result in a conviction. Trump only needs one juror to be either predisposed in his favor or confused enough to buy into his defense.
No conviction means no conviction, and Trump could then spend all of the remaining time through Election Day crowing (accurately) that "Biden's DOJ" took their best shot and missed. If Bill Cosby can try to describe his reversal on appeal (on the most narrow of merits-irrelevant technicalities) as a vindication, another serial sexual predator with an even bigger mouth and megaphone could do the same, on a whole range of offenses.
As I noted in my earlier column, having one or more trials in progress throughout 2024 would keep Trump's crimes in the public eye, with damning testimony garnering news coverage on a regular basis. If anything, therefore, I almost wish that the prosecutor had been willing to
bring a larger and more complicated case, with all chargeable offenses
included and all co-conspirators charged.
To return to my point (a) above, while a hung jury (or a not guilty verdict) would be bad, even a conviction would become old news very quickly. I have not heard anyone claim that Trump could actually end up in jail before the election, given the length of the trial itself and the inevitable appeals of the verdict and the sentence.
And even if he did go to jail, so what? Having him serve his sentence in full is presumably the point, not merely seeing him go to jail for a few weeks or months before becoming president again and making it all go away. Where is the upside for non-Trumpists of a speedy trial? If Trump moves back into the White House on January 20, 2025, are we all supposed to comfort ourselves by saying, "Well, before he finished turning the US into a fascist dictatorship, at least he was convicted and did a small amount of time in Club Fed"?
This is an instance in which the political press's fixation on horse-race coverage is unexpectedly the right approach -- even though they are doing it out of habit and laziness rather than for the right reasons. Only one thing matters, and that is whether Trump or any other Republican beats Biden next year. If Biden wins, the many cases against Trump and his cabal will move ahead, and the results of those trials (and likely a slew of guilty pleas) will stand. If not, nothing that happens in the next fifteen months will matter, as satisfying as it might feel while it is happening.
Was there ever a time when this was not going to be, as I put it in my earlier column, trial by election? That is, could we have seen things play out in a way that would have prevented Trump from being politically relevant and an ongoing threat to the future? Certainly, the 43 Republican senators who voted "not guilty" in Trump's second impeachment trial bear the stain of betraying their country. Beyond that, the reports show that the DOJ under Merrick Garland was at best listless and uncertain for its first eighteen months with regard to pursuing Trump's crimes. People who had no partisan reason to be part of the problem were thus very much part of the problem.
Had this all moved forward immediately after Trump was pried out of the Oval Office, it is possible that he would have become politically nonviable by virtue of being found guilty while this was all still fresh in people's minds. Of course, much of the evidence that is currently available had not yet been found, so we would have to make the (very defensible) assumption that the evidence in 2021 would still have been enough to convict.
In any case, that ship slowly sailed, and it was barely visible on the horizon by the time the January 6 Committee had wrapped up its impressive work. Nothing Jack Smith could do changes the fact that Trump was very quickly re-embraced by the Republican leadership in Congress and elsewhere. The painfully simple reality is that Trump will face no serious consequences for his conduct if he takes the oath of office again, whereas the wheels of justice will be able to turn if he remains a private citizen.
Again, I understand why the people who loathe Trump want to see this happen on an expedited basis. A relatively rapid trial and conviction would feel cathartic. It would also, however, be a temporary placeholder. It is possible, I suppose, that a conviction would move some low-information voters away from voting for Trump, but for all anyone knows, the opposite could happen. We should not bet on that.
This is a rare instance in which there is truly one and only one thing that matters. To repeat, if Trump or any other Republican (other than Chris Christie or Asa Hutchinson, I suppose) becomes the next President, it is Game Over. The legal activity between now and then will be fascinating, and it might even affect the election in one way or another, but it should not be anyone's main focus. Biden (or whoever is the Democratic nominee) must win a free and fair election -- and prevent the results of that election from being overturned by another violent mob. Everything else is secondary.