Trump Is the New O.J.

By Noah Rothman

Wednesday, July 19, 2023

 

Justice Department Special Counsel Jack Smith isn’t finished charging Donald Trump. With his case against the former president over the alleged mishandling of classified documents and the misleading of investigators pending, Smith informed Trump Sunday that he is likely to be federally indicted again over his role in the events leading up to the January 6 riots.

 

According to ABC News, Smith’s office informed Trump this weekend of the federal statutes he may be accused of violating — charges that could include conspiracy to defraud the United States, deprivation of rights, and witness-tampering. New York Times reporter Maggie Haberman revealed on Wednesday that this letter convinced courtiers of the leading GOP presidential candidate that the walls are, well and truly this time, closing in.

 

“At the moment, he is seeing this broadly as a threat to his freedom,” Haberman said. “And his advisers have been — in private conversations — pretty blunt that they see it as he has to win the election, and that is how he guarantees that he does not face jail time.” Haberman cautioned that Trump may yet defuse the charges against him in court, or at least sow enough doubt in the prosecution’s case to persuade at least one juror that Smith’s office has overreached. But Trump’s allies nonetheless see winning the primary and the general election in 2024, retaking control of the Justice Department, and short-circuiting the system as an “insurance policy” against a criminal conviction and even a possible prison sentence.

 

For the audience that already believes that the charges against Trump are only the visible manifestation of a vast conspiracy designed to delegitimize the 2024 election (and all future elections) and secure Joe Biden’s reelection in the process, there’s nothing untoward in Trump’s willingness to use the system against itself. Trump has found himself on the wrong tier of America’s “two-tiered system of justice,” and this is how you compete in a game of dirty pool.

 

In this atavistic conception of justice as tribal power politics, Trump is only a symbol. He’s the avatar of a common sort of persecution, though he is unique insofar as he has the means and stature to fight back. And Trump’s defenders are not unaware of the comparisons they are inviting. “Pre-Jan. 6, anytime you heard the term ‘two-tier system of justice,’ it’s Blacks, it’s Latinos, it’s the infringed, it’s the poor, it’s the drug addicted, it’s the marginalized, it’s the L.G.B.T.Q. community,” said attorney Joseph D. McBride, who represented “Stop the Steal” rally organizers. McBride added that the MAGA Right could now be added to that list.

 

This familiar fatalism is not just the nearest rhetorical weapon at hand. To listen to the former president’s defenders talk about his legal woes is to hear the echoes of a sordid history. It’s a noise that celebrates the miscarriage of justice as long as injustice is meted out in equal measure. It rejects equality before the law as an aspirational concept designed to apply a patina of legitimacy to structures that exist only to preserve existing power dynamics. In short, Donald Trump has become their O.J. Simpson.

 

The popular myth about Simpson’s 1995 trial is that the jurors disregarded the evidence before them when they reached their verdict. That cynical assessment underrates the extent to which the prosecution’s errors paved the way for an acquittal. But it was not just those who disagreed with the verdict who saw corrupt intent in the jury’s findings. Some African Americans saw the verdict as a long-overdue comeuppance; for them, the acquittal was a novel and thoroughly enjoyable inversion of a corrupt, racist system.

 

“He was framed, it was a mockery” said one Los Angeles–based community activist, Kerman Maddox in 2005, characterizing how his own father had viewed the case at the time. Maddox added that even those who didn’t share that view dared not say as much in mixed company — countenancing that level of objectivity would give aid and comfort to all the wrong people.

 

The author and academic Michael Eric Dyson conceded that the African Americans who rejoiced at Simpson’s acquittal were not operating under the illusion that he was actually innocent. Rather, they reveled in the “vindication” of seeing Simpson, himself a beloved creation of white-dominated institutions, become a source of consternation to those very institutions. “That was a delicious irony of the victory as well,” he said.

 

Harvard University professor Henry Louis Gates Jr.’s thoughtful essay in the New Yorker in the wake of the verdict crystalized the pervasive sense among Simpson’s supporters that the defendant himself had become a metaphor. “The defendant may be free, but we remain captive to a binary discourse of accusation and counter-accusation, of grievance and counter-grievance, of victims and victimizers,” he wrote. Trapped in this cycle, “an infinite regress of score-settling ensues,” and “an empty vessel like O. J. Simpson becomes filled with meaning.”

 

In the autumn of 1995, two-thirds of black Americans told pollsters that Simpson was not guilty and had been framed by law enforcement. Today, a majority of African-American poll respondents say Simpson was, in fact, guilty of the crimes of which he had been accused.

 

As of this writing, only about one-quarter of self-described Republicans believe that Trump is guilty of the federal charges pending against him — a figure that dovetails with the number of Republicans who think Trump is innocent of the charges brought against him in the novel interpretation of statute used by Manhattan district attorney Alvin Bragg. The two cases could not be more distinct. One is objectively more serious than the other. But the specific crimes of which Trump is accused are immaterial.

 

It is rare to encounter a defense of Trump’s conduct on the merits. And few who engage in that legalistic (and, therefore, institutionalist) thinking see his reelection to the presidency — only so he can decline his own prosecution — as the remedy for the wrongs of the Biden Justice Department. Those who do see Trump’s recapturing the White House as a legitimate means of reforming the DOJ and defusing the charges against him aren’t arguing for blind justice, though. The very notion of blind justice is naïve, they’d argue. They see only long-standing grievance, and Trump is their instrument of poetic retribution.

 

It is telling that even critics of the idea that Trump is a victim of a two-tiered justice system don’t defend that system. Trump is right about bias, they concede, but wrong only about who its true victims are — working-class blacks, for instance. So Trump’s critics and supporters agree in broad strokes that the system is corrupt; they’re bickering only over the details. That is cold comfort for those of us who hope that Republicans will evaluate the allegations against Trump on the merits 20 years from now. Maybe they will, but only because another empty vessel will have long since taken his place.