The Art of the Deal

The president is caught in a lie.

Catching him in a lie barely qualifies as news most of the time, but this lie is special. It has to do not with policy or politics but with a federal criminal prosecution.

Of his own son.

Last month in an interview with MSNBC Joe Biden was asked how it would affect his presidency if the Justice Department’s investigation of Hunter Biden led to an indictment. It won’t have any effect, the president answered. “My son has done nothing wrong,” he insisted, implying that charges wouldn’t be brought.

His son has, in fact, done something wrong. By his own admission.

On Tuesday morning the DOJ announced a deal in which Hunter Biden will plead guilty to two misdemeanor counts of failing to pay income taxes and agree to enter a pretrial diversion program related to a charge of gun possession while using an unlawful controlled substance. (Anti-tax and pro-gun: Are we sure Hunter is a Democrat?) Sources told the Washington Post that the feds are likely to recommend probation on the tax offenses, as the tax owed has since been paid; if Biden fulfills the term of the diversion program, which reportedly will require him to remain drug-free for 24 months and to never again own a firearm, he won’t be prosecuted on the gun charge at all.

Three federal offenses, zero jail time for the president’s son. As you may have heard, another recent federal defendant with ties to the presidency faces somewhat more severe consequences in his own criminal case. If found guilty on all counts and sentenced to the maximum on each (which would never happen, but still), he’s staring at 400 years in prison and fines exceeding $9 million.

The usual suspects are processing this disparity as they usually do.

Wander through right-wing social media today or the halls of Congress and you’ll find endless grousing about Hunter Biden’s plea deal by Trump servants who are keen to discredit a Justice Department that has their master dead to rights on unlawfully retaining sensitive national defense information. Post-liberal populists normally quite like the idea of a two-tiered system of justice in which political cronies are held to a lower standard—unless their enemies are the ones temporarily running that system, of course.

Even so, I think it’s canny for Trump apologists to play up the light sentence sought for Hunter by the, er, Trump-appointed U.S. attorney who signed off on today’s plea bargain. By doing so, they’re putting intense political pressure on the DOJ to grant Trump a sweetheart deal of his own, assuming he’s not too stupid to accept one.

Which, let’s face it, he probably is.

We’ll find out in the coming days as reporters dig into the data just how unusually light Biden’s sentence is for a first-time offender who’s since made restitution on his tax delinquencies. 

But being let off easy on a gun charge is sadly nothing new for criminals in America, as my colleague Kevin Williamson often points out. If anything, the feds appear to have been a bit less lenient with Hunter than they usually are. According to the Post, among nearly 4,000 federal criminal cases related to unlawful possession of a firearm between October 2022 and March 2023, lying on a form when purchasing a weapon as Biden did was the lead gun charge in only 3 percent of them.

The investigation isn’t closed either. If you’re an avid Fox News viewer fearful that your daily diet of Hunter Biden content might soon be cut off, take heart in the fact that the probe in Delaware is “ongoing.”

Whether Hunter’s charges are fair relative to similarly situated defendants is one question. Whether Trump’s charges are fair relative to Hunter’s is something else entirely.

Let’s review.

For more than a year and a half after leaving office, Trump rebuffed every informal attempt by the federal government to persuade him to return the many sensitive documents in his possession without incident. Had he cooperated at any point, right up until the day before the FBI searched Mar-a-Lago, I suspect he wouldn’t have been charged with any crime. (See, e.g., Mike Pence.) In fact, none of the counts against him for willfully retaining documents in Jack Smith’s indictment relate to material Trump reluctantly handed over before he was subpoenaed in May 2022. He’s gotten off scot-free with respect to those documents.

Hunter Biden is receiving a light punishment in return for admitting wrongdoing. Trump almost certainly would have received no punishment and never been asked to concede that he’d done wrong despite having committed far graver offenses if he hadn’t been so stubborn about “my boxes.” Republicans are quite capable of grasping fine legal distinctions when they want to, and this one isn’t particularly fine. If they can’t see the difference in these two cases, it’s because they don’t want to.

Frankly, I doubt Trump would have been charged even after the FBI searched his property and recovered additional material if not for the deceit he engaged in. According to the indictment, he misled his own lawyers by quietly hiding boxes before they signed an attestation that all documents in his possession had finally been returned. At another point, after he was subpoenaed, he allegedly asked his attorney, “What happens if we just don’t respond at all or don’t play ball with them?” and “Wouldn’t it be better if we just told them we don’t have anything there?”

Being stubborn and crooked is a good way to get indicted. Being stubborn, crooked, and stupid all but guarantees it:

Trump time and again rejected the advice from lawyers and advisers who urged him to cooperate and instead took the advice of Tom Fitton, the head of the conservative group Judicial Watch, and a range of others who told him he could legally keep the documents and should fight the Justice Department, advisers said. Trump would often cite Fitton to others, and Fitton told some of Trump’s lawyers that Trump could keep the documents, even as they disagreed, the advisers said.

Tom Fitton isn’t a lawyer, he’s a political activist. Like Sidney Powell and Rudy Giuliani after the 2020 election, he prevailed over more ethical and experienced advisers in influencing Trump by assuring the former president that his worst impulses are correct. Rarely will a toady lose a strongman’s ear by telling him what he wants to hear.

There are many things one can say about Hunter Biden, but at least he has the basic horse sense to take his lawyers’ advice when in criminal jeopardy.

On Monday night Trump sat down with Fox News and all but confessed to the elements of the charges against him. He couldn’t hand over his boxes to the National Archives until he had checked them thoroughly, he told Bret Baier, because his golf attire might have been jumbled up inside with top-secret documents. Why a billionaire would prefer to risk prison than simply ship everything back to the feds as-is and buy some new polo shirts is unclear. So is his inability to find a few hours over the course of 18 months to sort through the contents of the boxes when he seems to spend most of his time nowadays golfing.

Reliable Trump defenders like Brit Hume were aghast after the Fox interview about their man’s impulse to needlessly make trouble for himself. One can only imagine how his lawyers felt. (Although, if you’re foolish enough to take on Trump as a client at this point, you must know what you’re getting.) Online MAGA supporters barely bother to argue the facts of the case, resorting instead to dubious interpretations of the Presidential Records Act and table-pounding about “double standards” for which today’s wrist-slap of the president’s son will prove useful. If they have any theory as to why Trump isn’t guilty as charged of at least obstruction of justice, as alleged by the indictment, I haven’t heard it.

All of which makes this a pretty ripe moment for him to consider a plea bargain, no?

I remain firmly opposed to pardoning him for his crimes, and not just because letting him off the hook for stealing classified material wouldn’t end his potential federal criminal jeopardy. A pardon should require some admission of fault, if not by Trump himself than by Republican leaders or Republican voters in the form of electoral repudiation. A party poised to renominate a twice-indicted coup-dabbler isn’t admitting fault. They’re tripling down on it.

And because they are, pardoning Trump wouldn’t help “heal the country” or “drain the poison” from American life. The right would react to clemency from Joe Biden not with gratitude but with resentment and cockamamie conspiracy theory, the way they process all modern political developments. MAGA fans would claim that Biden issued the pardon only to spare his Justice Department the embarrassment of their case falling apart in court, or because he’s secretly worried about being prosecuted himself by a future Trump administration and wants to set a precedent in which ex-presidents are held harmless for their crimes.

I repeat what I’ve said before: The only coherent argument for pardoning Trump is to appease the would-be domestic terrorists who might turn violent on his behalf if their leader is ignominiously jailed. If we’re going to grant him legal impunity for the sake of mollifying the most feral elements of his base, we should be forthright about it instead of dressing it up in euphemisms about “comity” or “healing.” And we shouldn’t complain afterward when the worst actors in society draw a logical conclusion about the political utility of threatening violence.

Pardons are an act of mercy. Mercy should be earned. Trump has done nothing to earn it. The reason he was never persuaded to return “his boxes,” I suspect, is that he believed and still believes that America won’t have the nerve to jail him. When any institutional effort to hold him accountable for his misconduct does more damage to that institution’s credibility than it does to his, as invariably happens among American right, accountability quickly becomes more trouble than it’s worth. There should be no rewarding that with a pardon.

However.

Plea bargains aren’t special acts of mercy. They happen in virtually every federal and state case, as we were reminded again on Tuesday morning. They’re products of rational risk assessment on both sides about the odds of winning or losing at trial. And in Trump’s case, the risk of the feds losing is real: As strong as the indictment against him looks, he’s drawn a favorable judge in a politically favorable state. A single MAGA-minded juror could ensure a mistrial, daring the Justice Department to refile charges for another hugely expensive, politically wrenching prosecution.

Prosecutors have good reason to make a deal. But so does Trump, given the strength of the evidence against him and the likelihood that even a short-ish sentence would lead to him dying in prison.

Sounds to me like the makings of a plea bargain.

“Forget it,” you might say. “He’ll never confess his guilt. He’s incapable of admitting fault, let alone remorse.” Right, but he doesn’t need to admit fault in order to make a deal. He could offer what’s known as an “Alford plea” in which the defendant maintains his innocence but concedes that the evidence against him is strong enough that a jury would probably find him guilty beyond a reasonable doubt.

Imagine Trump agreeing to enter an Alford plea, paying some sort of fine, and accepting a few years’ probation in exchange for no prison time. The DOJ would leap at that deal, I suspect, sparing itself years of political headaches in trying Trump and then years of logistical headaches in figuring out how to safely incarcerate him if he’s found guilty.

Even if the Justice Department is loath to let him off with no jail time after all of the crimes he’s alleged to have committed, today’s Hunter Biden plea deal makes it that much harder politically for it to say no. “If Hunter didn’t have to serve time, why does Trump?” the average joe will wonder. “Good question!” Republicans will reply in unison, hoping that said average joe doesn’t think too hard about the relative gravity of the charges against each man.

If the feds can let the left-wing president’s corrupt son go free, it’s only fair that they let the corrupt right-wing former president go free as well. To a post-liberal mentality, that’s basic justice.

I think Trump could spin a plea deal to the satisfaction of most of his fans so long as his punishment was conspicuously light, making it seem as though he “won” the plea deal. My lawyers came to me with tears in their eyes and said, “Sir, many people are saying it would be good for the country if you made a deal with the crooked thugs at the Justice Department to end their witch hunt.” So I did it for you. But I didn’t admit guilt! Total exoneration!

Most Trumpers would buy it. His Republican rivals would be greatly relieved, spared the anxiety of having to decide whether they should maybe mention periodically that he’s been charged with 37 felonies or whether snowflake Republican voters would hold that against them. A plea deal could even be good for Trump’s campaign: If he begins to lose altitude in the polls because of his legal troubles, of which there’s already some evidence, he’ll want to put the whole thing behind him as cleanly and quickly as possible. Voila: An Alford plea.

Hunter Biden’s sweetheart deal is the perfect moment for him to demand “equal” treatment from his antagonists at the DOJ. I bet his lawyers are whispering in his ear about it already. It’s the perfect solution.

Except … nothing’s simple with Trump, is it?

For one thing, what happens if the feds indict him separately for crimes related to January 6? The last thing Trump would want to do is clean the slate on his documents fiasco with a politically painful plea deal only to turn around and find Jack Smith writing new charges on it. I doubt Smith would want that either, frankly, as it would make the plea bargain look like a bait-and-switch of sorts. Why, the corrupt DOJ is so eager to convict Trump that they went and filed new charges after he cooperated with them on the original charges.

There’s a political risk to Trump, too. Making any sort of deal with a “deep state” he’s spent years vilifying might lead some of his fans to call him a sellout. Ron DeSantis will try to capitalize, forever eager to ingratiate himself with Trump’s populist base. “Why did Trump legitimize our weaponized Justice Department by agreeing to their terms?” the governor might ask. “We’re never going to defeat the left by making deals with them.”

The first and highest duty of a populist Republican is to “fight,” even in situations when only a moron would do so. A plea deal would be the opposite of fighting.

And even if Trump’s base were nominally willing to tolerate a deal with the “deep state” to some utilitarian end, they might resent him anyway for denying them an opportunity this golden to revel in their own alleged persecution. That was the theme of yesterday’s newsletter, that the GOP is less a political party designed to advance right-wing policies at this point than a cultural identity based on victimhood. If Trump settles his business with the DOJ and ends up with favorable terms, as he surely would, a high-stakes legal pageant destined to feed the GOP base’s exquisite victimization complex will have been canceled before it got started. 

The effects of that on his polling would be unpredictable. His strongest play for the nomination is to try to turn the primary into a referendum on whether Republican voters side with him or with his persecutors. The weaker that pitch gets, the more the primary reverts to a choice rather than a referendum and the more room there is for a challenger to get traction. A plea deal would weaken it, unmistakably.
His master plan to beat the rap, I think, is to get reelected president, order the Justice Department to drop all pending charges against him, and then set about firing Jack Smith and everyone else who dared try to make him pay a price for being a wanton criminal. That’s a much longer longshot than using his political leverage right now to cop a plea on favorable terms but that’s what happens with a guy who gets his legal advice from Tom Fitton. “Democracy is the theory that the common people know what they want and deserve to get it good and hard,” H.L. Mencken once famously wrote. Those are words for foolish Republican voters to live by as we lurch further toward the unknown.