A Pyrrhic Prosecution

Bad vibes about New York’s looming Trump indictment.

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Former President Donald Trump. (Photo by Anna Moneymaker/Getty Images)

One challenge of being a professional take-slinger is keeping track of the takes you’ve slung, particularly if you’re slinging them every day. When news broke last night that Donald Trump will probably soon be charged with a crime in Manhattan, the topic seemed familiar—dimly. “Haven’t I written before about the politics of a Trump indictment?” I wondered.

I had, it turns out. About 100 newsletters ago.

Another challenge is the risk of issuing conflicting takes. There’s nothing wrong with that in principle: As John Maynard Keynes (didn’t quite) put it, “When the facts change, I change my mind. What do you do, sir?” But self-contradiction violates an implied warranty of punditry, that the sage columnist sees further and with greater clarity as he gazes across the political landscape than the average Joe does.

Thinking that the politics of indicting Trump were good in November and not so good in March risks breaching the warranty and—gasp—calling that sagacity into question.

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  1. Avatar photo
    Bill Nelson

    Georgia may be “bust”. According to the former jury forewoman there may not be an opportunity to charge trump, just ding some underlings for lying.

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  2. Deodand

    This article does seem to have a good amount of common sense.

    However, the Georgia situation is fairly nonsensical. People keep repeating "find the votes," completely out of context. The actual context renders those words quite innocuous. Mr Trump claimed he had evidence of hundreds of thousands of votes that shouldn't be counted. (It turns out, there are in fact probably a significant number of votes that were miscast in the wrong precinct because people had moved; but it's unclear how many, and not likely to be a huge amount; and much of the evidence of miscast votes was only developed after the phone call at issue.) Mr Trump laid out his evidence, which was piecemeal and speculative (much more than he would admit). He needed more evidence and research from the GA Sec'y State.

    So he said the Sec'y State needed to help him find at least the minimum of votes needed to be legitimately thrown out under the rules in order to get the "correct" result; namely, that Mr Trump would win, once proof was reached that certain votes were miscast.

    So the entire substance of the call is this. "I have evidence of hundreds of thousands of illegally counted votes. They're wrongly counted for reasons A, B, C. Work with me to go down the easiest path, picking the lowest hanging fruit, to find the minimum votes for me to win. You can choose any 11,000 of the hundreds of thousands that shouldn't be counted. Just pick which ones are easiest. Find the votes."

    There is of course much to complain about with Mr Trump. But the substance of this particular call, and the seemingly damning phrase "find the votes," are actually quite standard fare. This is not actually a reasonable case (or an easy one) to make against Mr Trump.

    (This is not to say that there were really "votes to be found" sufficient to change the result, even in Georgia. Obviously Mr Trump used a combination of lies, vast exaggerations, mild exaggerations, and legitimate arguments about irregularities in order to keep claiming he won. Georgia, however, was one of the narrowest margins for Mr Biden, and one where there was actually a fair bit of evidence that votes were miscast. It's probably the only state Mr Trump had a prayer of changing the result in; and of course just changing Georgia would not have altered the election result.)

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    1. BPhillips

      A couple of issues - the votes in Georgia had already been certified - there are proper channels to request a recount - this wasn't one of them.

      Trump also threatened Raffensperger - On the phone with Raffensperger, Trump said that submitting shredded and unsigned ballots would be "more illegal for you than it is is for [the people doing so], because you know what they did and you're not reporting it."

      He went on to call it a criminal offense and a big risk.

      Later, after Raffensperger had denied the fraud allegations, Trump said he thought it was "dangerous for you to say that."

      A tweet from pro-Trump attorney Lin Wood from a few weeks before the phone call, saying that Trump gave Raffensperger and Georgia Gov. Brian Kemp "every chance to get it right."

      "They refused. They will soon be going to jail," Wood wrote. Trump retweeted that tweet.

      This looks like Trump pressuring a Secretary of State to change the results of the election or risk being jailed.

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      1. Deodand

        With a few exceptions, a statement of belief of a legal consequence is not a violation of law, whether crime or tort. The main exception doesn’t apply here—blackmail.

        What you’re making is an incredibly “exotic” claim. By which I mean trying to wish a crime into existence where no statute actually applies in a clear way. That is, no reasonable prosecutor would charge it; and indeed, it shouldn’t be chargeable at all.

        (Oddly, if what Mr Trump did was a crime, then people saying Mr Trump committed a crime are probably breaking the same made-up crime: stating a belief in a legal consequence.)

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        1. BPhillips

          I see your point if someone like me says "that could land you in the big house", but I think its different when the President of the United States threatens you with jail for not "finding 11,000 votes". He actually has the power to make that happen.

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          1. Deodand

            So if an official says “pay your taxes or you’ll be fined or go to jail”…is that a crime? Or is it a crime to do it personally, over the phone? Or if the crime isn’t real (an official saying that anti-trans language is illegal)? Or if the crime is really on the books but the factual predicate isn’t sufficient (probably the Trump case?)? These are all pretty dubious.

            As I said, there’s really not a good charge here. The walls aren’t closing in. Charging Mr Trump with most of these recent purported crimes would be a blow to the rule of law.

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  3. Avatar photo
    Ben Connelly

    I’ll admit, I’m no fan of Trump, but when I heard about this I was like, “What? Stormy Daniels again? How are we still on this?”

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  4. Deleted Comment

    This comment has been deleted

  5. Avatar photo
    Iwasacrookedlawyer

    Agree with the author’s bottom line, Georgia is the serious case. Stormy Daniels is basically about a campaign finance law violation. Any punishment will seem so insignificant as to almost be a vindication. Drop the case.

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  6. Joe1776

    None of these prosecutions will be as damaging to Trump, in the primary, as donating $100k to the Clinton Foundation. That is campaign gold! I never knew about that. It is definitely something for republicans to remember in the primary. I suppose that is why he never had her locked up. :)

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    1. Rchap347sum

      Narrator: This is not campaign gold. You must have missed the 2015/16 GOP primary, because Trump's opponents used the Clinton contributions to no avail. The MAGA crowd didn't care.

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      1. Joe1776

        Did it come up in a debate? I don't remember it coming up at all. Republicans often gloss over facts that can help them.

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        1. Rchap347sum

          Yes, it was all over the place, because it did seem like a bombshell when the information first came out. Here was Ted Cruz:

          Republican presidential front-runner Donald Trump cited his overseas business operations on Thursday night to defend his donations to Hillary Clinton's 2008 presidential campaign.

          "We're doing many, many deals outside of the United States," Trump said during Thursday night's Fox News debate. "I support politicians. In 2008, I supported Hillary Clinton, I supported many other people, by the way, and that was because of the fact that I'm in business."

          Trump made the comment in response to an extended assault from Sen. Ted Cruz, R-Texas, who offered a litany of Trump's donations to losing Democrats in order to undermine the real estate mogul's claims that he contributed to those politicians by necessity.

          https://www.washingtonexaminer.com/trump-on-why-he-donated-to-clinton-im-in-business

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          1. Joe1776

            Ok thanks. If it was back in 2008 I guess it will be old news. So I guess it won't be gold. If Trump is attacking Haley for saying she looked up to Hillary, Haley can say yeah well at least I didn't give the Clinton foundation a hundred k. More of a defense response for her then an attack. But I still think it is worth reminding people. There are others that like me don't remember this.

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  7. Avatar photo
    Pterseus

    The problem with Trump’s enemies is that they’ve publicized accusations and investigations and made much of possible charges before knowing if they ultimately had the goods.

    Counter-intel investigations, for example, are supposed to be done quietly. Instead, in Trump’s case, every theory was leaked in real time and every accusation treated as fact. Ultimately he was able, with some justification, to claim that he had been the victim of an elaborate dirty trick with the help of politicized and corrupt FBI officials and a complicit and dishonest media.

    It worked to destroy Ted Stevens, but it hasn’t worked with Trump because there is more distrust of institutions and Trump has this weird ability to make his transgressiveness seem counter-revolutionary.

    Now everything they throw at him looks like more of the same, and when it fizzles it just bolsters his folk hero status for his base. He’s like the Pretty Boy Floyd of American politics—the longer he stays alive the more his legend grows.

    Something just tells me if they would have just kept their powder dry and investigated behind the scenes, or tempered their open hostility to his supporters, or just seemed less shrill in general, Trump would have been a flash in the pan.

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  8. Avatar photo
    Kalinj53

    I enjoyed and largely agree with your argument, but I believe the threat to the Georgia prosecution from pending legislation in the state legislature is very low. The apparently lightly research Slate article you cite plays up this threat; the bills were actually introduced to address an entirely different issue. Legislators representing Athens-Clarke County have been alarmed by the local prosecutor’s stated policy of not enforcing certain laws disfavored by the left and by laxity in general. Athens-Clarke County is the location of the University of Georgia and is famously more left politically than much of the rest of the state. Here’s an article on the issue from the local paper: https://www.onlineathens.com/story/news/state/2023/03/06/prosecutor-oversight-bill-passes-state-house-gaines-targets-gonzalez/69979160007/

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  9. Tommaj60

    Crimes plus twitter idiocy plus a mid-term loss in ‘18 plus a loss in ‘20 ( and more Republican losses) plus more losses in ‘24 plus bat shit crazy.

    America likes winners.

    Trump’s record wouldn’t give him a playoff birth in either the NBA or NHL (only the worst miss the playoffs) and yet the “media” keeps giving him attention.

    Biggest loser in the United States isn’t a winning slogan.

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  10. Avatar photo
    Gbr0wn

    " . . . Trump is an electoral force and the deep state is terrified that he might return to power so they’ve taken to cooking up dubious claims of lawbreaking to justify jailing him before he can be reelected. "

    The "deep state" knows it's untouchable - they laughed Trump off when he was in office. It will only get fixed with an organized, widely supported taxpayer strike, depriving the federal government of the cash it must have to re-distribute to taxpayers

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