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The Elephant in the Room
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The Elephant in the Room

Should Biden make a campaign issue of Trump’s criminal jeopardy?

President Joe Biden greets supporters after addressing union workers on September 4, 2023, in Philadelphia. (Photo by Mark Makela/Getty Images)

The hardest column to write is the one where the correct position is obvious.

Those are “easy” in the sense that the thesis requires no effort to develop. But if your job is to produce something thought-provoking, good luck doing that with a topic where the right conclusion is self-evident.

For instance, try writing 2,000 words on the subject “pizza is good” without simply restating the reasons everyone already agrees that pizza is good.

The “pizza is good” problem is why I haven’t written a full piece about trying to disqualify Donald Trump from office under the 14th Amendment. It’s such a bad idea politically, and so plainly doomed in court at this stage of the 2024 campaign, that I can’t get more than a few hundred words out of it.

It won’t work, and if it did it would wreck whatever is left of the American right’s trust in democracy and the judiciary. There isn’t much else to say. Pizza is good.

Today’s topic also presents a “pizza is good” problem.

Some Democrats have grown restless with Joe Biden’s habit of no-commenting when he’s asked about Trump’s indictments. He’s done more than just dodge the issue: He’s laid down an official policy for his campaign, and the DNC, that the topic is verboten, never to be broached for political advantage.

This seems so obviously correct to me as a matter of ethics and strategy that I fear there’s nothing to say about it that you, the reader, haven’t thought of already.

But we should talk about it because some members of his own party think Biden’s omerta policy does more harm than good.

By chance, his running mate was asked on Wednesday about Trump’s indictments. Kamala Harris isn’t known for her deft handling of questions, but she dealt with this one about as elegantly as one could given the restrictions of omerta. Everyone’s entitled to their day in court, she allowed—and everyone is accountable to the law.

The probable Republican nominee for president will stand accused of 91 crimes next November, assuming he doesn’t go to trial on any of them before then. Should Democrats maybe mention that fact from time to time in the interim?

How much should the big, orange, potentially orange-jumpsuited elephant in the room be ignored?

This morning, one of my editors flagged a key irony of Biden’s omerta approach. Trump’s Republican challengers should be talking about his indictments but aren’t, he pointed out, while Democrats shouldn’t talk about his indictments but probably will.

Insofar as electability is a concern for GOP voters (which it isn’t!), the frontrunner’s criminal liability should be a topic of near-obsession for his primary opponents. Nikki Haley mentioned it at the first Republican debate last month, calling Trump “the most disliked politician in all of America” and predicting that he won’t win the general election because “he’s gonna spend more time in a courtroom than he’s gonna spend on the campaign trail.” But that sort of full-frontal attack on his legal troubles remains rare, even as his lead balloons to—no typo—45 points.

You know why. The Haleys and DeSantises have calculated that there’s more to lose politically than to gain by pressing that argument. Right-wing propaganda has convinced primary voters that the indictments are nothing more than a corrupt Democratic plot to sabotage Trump’s reelection bid. To use those charges against him is to imply that the charges are justified, thereby aligning oneself with the left.

That’s a career-killer in Republican politics. And if young hopefuls like DeSantis and Haley are destined to be squashed in this election, they want to at least survive with their careers intact.

You also know, or should know, why Democrats shouldn’t be talking about these indictments, just like you know that pizza is good.

Not every Democrat knows it. A Democratic source in June argued to Politico that Biden should take full political advantage of the indictments by speaking out about them. “It’s a pretty easy argument to make,” he said. “Vote for our guy, because the other guy is going to jail.”

It is an easy argument—unless your guy is the one trying to send the other guy to jail.

Charging your political opponent with a crime and then touting those charges as proof that he’s unfit for office would stink of the sort of dirty trick Republicans already suspect Biden of playing. The president would be asking voters to conclude that Trump is corrupt based on nothing more than the say-so of prosecutors from his own party, including a Justice Department that answers to him directly. If Americans complied by reelecting Biden, it would mean that mere suspicion encouraged by a law enforcement friendly to the incumbent had succeeded in ruining a political challenger.

Seems like a bad precedent. Especially given how mere suspicion panned out in previous investigations targeting Trump

Weaponizing the charges on the campaign trail would also make a hypocrite of the “norms” president, who got elected promising not to let politics infect the Department of Justice the way it did under his predecessor. That norm was unavoidably bent when Jack Smith indicted the Republican frontrunner; for Biden to turn around and wield Smith’s criminal charges against Trump as a cudgel would break it entirely.

Imagine being Merrick Garland, having tried to negotiate the impossible politics of this matter delicately (too delicately, frankly), and waking up one day to find your boss treating your department’s indictments as if they were campaign mailers.

Worse, Biden playing politics with the charges would further discredit the prosecutions of Trump in the eyes of skeptics. The more the trials seem like productions of the Democratic presidential campaign, the easier it’ll be to dismiss any guilty verdicts as all part of the show. This too is unavoidable among the 40 percent of the country that’s already been brainwashed into believing any attempt to hold their hero accountable is the product of some sinister liberal scheme. But it would be good if we didn’t give the other 60 percent more reason to wonder if the 40 percent have a point.

Finally, there’s the pragmatic case against Biden talking up Trump’s indictments. What, precisely, would doing so accomplish? Who among us will remain blissfully ignorant of the Republican nominee’s criminal saga if the president doesn’t pipe up about it now and then? As one Democratic strategist put it to NBC, “When a train wreck is occurring, you don’t need someone standing off to the side saying, ‘Look at that train wreck.’ It’s obvious.”

It’ll be very obvious. Not only will Trump spend the next year in and out of courtrooms, producing endless news-grabbing legal drama: his trial in Georgia will be televised and livestreamed. And in case the media decides it has better things to cover than the trial(s) of the century in the thick of a presidential campaign (spoiler: it won’t), Trump himself will force their hand by continuing to raise the subject.

Untethered as ever to reality, the defendant himself is going to frame the coming election as a referendum on whether he should go free or go to prison. Those stakes are so favorable to Democrats that all Joe Biden needs to do is smile.

To recap: Melted cheese is savory and succulent, tomato sauce is sweet, tart, and velvety, crispy crust scratches the primal itch for carbs in all the right ways, and Joe Biden should keep quiet about Trump’s indictments. Pizza is good. 

Unless, that is, we’re overlooking something. Can pizza actually be bad?

The good news for Team Biden is that I think it’s right to focus its election message on the economy (and abortion) instead of on Trump. Many Americans don’t have the luxury of caring about anything other than which candidate is more likely to help them make ends meet. That means inflation is a potential campaign-killer for Democrats. They’re better off spending time and money on addressing that problem than messaging a subject like criminal liability that messages itself.

The bad news for Team Biden is that I’m also the guy who thought Ron DeSantis was dead right to go full metal populist with his campaign in hopes of cracking Trump’s uncrackable MAGA base.

You’re not dealing with Napoleon-level strategic genius here.

So let’s assume I’m wrong again. What’s the argument that Biden should speak up about the indictments?

For starters, sustained silence always risks political death. Look no further than DeSantis, who took the high road and bit his lip for the first five months of this year while Trump savaged him daily. The governor gambled that voters would look past those attacks and focus on his record as he signed one new culture war initiative after another into law. He didn’t need to respond to Trump’s bluster. Events would do the talking for him.

How does that gamble look in hindsight?

If Joe Biden believes American voters have the intelligence and perspicacity to determine which candidate is more fit for office without anyone needing to cite the strongest available evidence against his opponent, well, that makes one of us. Democrats should never forget that Trump is fundamentally a salesman; he’s good enough at his job to have won the presidency once and to almost have won it again despite, to everyone to the left of Chip Roy, being about as popular as foot fungus.

Ceding the messaging battlespace to him on a topic as fraught as whether his indictments are or aren’t a “deep state” frame-up feels perilous, then, and all the more so given Biden’s own deepening ethical jeopardy from the House GOP’s investigation of Hunter Biden. Put yourself in the shoes of one of America’s many low-information voters: If the right-wing establishment seethes with theatrical outrage at the alleged corruption of “the Biden crime family” while the left-wing establishment murmurs cautious milquetoast “innocent until proven guilty” statements about Trump’s, which side would you, the ignoramus, assume is on firmer ground legally?

Why, if Trump were guilty, Joe Biden would be talking more about it, wouldn’t he?

At the very least, Trump and Republicans going full bore on Huntergate while Democrats hem and haw about the 91 criminal counts against him might have the effect of “balancing the scales” morally in the minds of some voters, draining some of the potency from the four indictments. If you’re uncertain about which side is more corrupt, how comfortable would you feel punishing Trump by withholding your vote from him given your uncertainty?

There’s another argument for Biden to speak out. Remember that he’s used the bully pulpit before to make a moral argument against Trump and had surprising success with it. I’m thinking of that weirdly lit speech about democracy and MAGA extremism that he gave at Independence Hall two months before the 2022 midterms, which most pundits scoffed at. Surely voters wouldn’t prioritize such gassy abstractions over traditional bottom-line matters like prices at the supermarket, the thinking went. I, the not-quite-Napoleonic strategic genius, shared that thinking.

But I, and we, may have been wrong about that too.

“Some people in Biden’s orbit believe that the moment calls for his imprimatur, outlining for the nation the gravity of a former president facing charges in a federal court,” Politico wrote in June about the prospect of weaponizing the indictments against Trump. It’s true, there are few events in American life with longer political reach than presidential remarks, even in an age as perpetually distracted as ours. And although nearly all voters will be aware of Trump’s legal troubles by Election Day, they might not take a firm position on whether those troubles are disqualifying unless that case is made to them patiently and repeatedly.

I mean, really. Having lived through the past eight years of civic degradation, do you trust the people of this country to arrive on their own at the right conclusion about the advisability of trusting likely criminals with power?

Pizza is good, we can all agree. But some pizza needs more defending than others.

Having said that, I still think omerta is the right strategy. But there’s a way to call attention to Trump’s alleged criminality without using his indictments against him.

Voters should be reminded early and often that some of the worst actors involved in the insurrection have already been convicted and sent away for years. If America reelects Trump, an unknown number of them will be given presidential pardons and spared from having to pay for their crimes.

The man himself has said so. 

“I am inclined to pardon many of them,” he told CNN at his televised town hall in May. “I can’t say for every single one, because a couple of them, probably they got out of control,” he cautioned. But he also pledged that “a large portion of them” will be freed promptly after he takes office.

They might even receive an official apology.

Trump “sees political advantage in continuing to say that he might pardon people,” New York Times reporter Maggie Haberman said Tuesday after Proud Boys leader Enrique Tarrio was given a 22-year sentence for seditious conspiracy related to January 6. (Tarrio is the ninth defendant to receive a sentence of 10 years or greater.) It doesn’t take a Napoleon-level strategic genius to recognize that that’s wildly incorrect, that there’s no political advantage to be had in promising clemency to one’s henchmen in a failed coup plot—at least not outside of an illiberal lunatic asylum like the Republican primary.

To the contrary, amplifying Trump’s promise to pardon some of the J6-ers is an efficient way to remind the electorate of how much lawlessness he’s tangled up in separate and apart from the criminal allegations he’s personally facing.

More than 600 people have pleaded guilty to charges stemming from the insurrection. More than 300 received prison time and 100-plus went to trial and lost. Three of Trump’s sleaziest cronies—Steve Bannon, Roger Stone, and Paul Manafort—received pardons from their benefactor during his final days in office, and by no means are they the only close associates who’ve landed in legal jeopardy in the last few years. Depending upon how quickly Fani Willis’ case against Trump’s “Stop the Steal” confederates proceeds in Fulton County, Georgia, there may be a dozen or more other criminals on the MAGA alumni roll before Election Day.

A vote for Trump is a vote for impunity for any federal defendant who helped him try to seize power in 2020. That’s all Democrats need to say. It has the virtue of being true, and it avoids dragging the various indictments against him into the campaign—although, of course, a voter given to musing about the strangely large cohort of criminals around the Republican nominee might also soon find themselves wondering about his own criminal proclivities.

And the beauty of it? Many populist Republicans, starting with Trump himself, will spend next year reinforcing that message by crying crocodile tears publicly for the insurrectionists who’ve been locked up. Within the past 24 hours alone, a GOP presidential candidate and a member of Congress have done it. Any swing voter inclined to believe that Biden’s party is exaggerating in accusing Trump of wanting to empty the jails of the miscreants who smashed up the Capitol will be reminded repeatedly that they’re not exaggerating—by Republicans themselves.

Whether Trump is a criminal remains to be seen. Whether Trump and his acolytes are pro-criminal when the criminal in question shares their politics is a simple truth, much more so than it is for Joe Biden. Democrats should make it their highest priority to educate undecided voters on what it would mean for actual law and order if they elect the “law and order” party next year. In a better country that point would also be as obvious in 2023 as the idea that pizza is good. It isn’t.

Nick Catoggio is a staff writer at The Dispatch and is based in Texas. Prior to joining the company in 2022, he spent 16 years gradually alienating a populist readership at Hot Air. When Nick isn’t busy writing a daily newsletter on politics, he’s … probably planning the next day’s newsletter.