By Nick Catoggio
Friday, May 31, 2024
Last night, a friend and I were discussing The
Event and he threw a hypothetical at me.
What if Ken Paxton, the attorney general of Texas, had
brought charges there this year against Joe Biden similar to those Donald Trump
was just convicted on? And what if a jury in Paxton’s solidly Republican state
had found Biden, a Democrat, guilty months before the election?
How would Biden voters feel about that?
I take his point. In some ways, the analogy understates
how dubious Trump’s prosecution was.
Manhattan District Attorney Alvin Bragg didn’t just
indict him in the thick of a presidential cycle, he indicted him for something
that happened eight years ago, before Trump became president. The only reason
the statute of limitations didn’t bar him from doing so is because of an
esoteric legal theory Bragg used to elevate misdemeanors to felonies by dint of
a related but unproven “second crime” that Trump had supposedly committed. The
offenses with which Trump was charged are rarely
used in New York to support an indictment, too. Typically they’re
lesser charges in a case alleging more serious crimes.
And Bragg isn’t any random Democratic prosecutor. During
his campaign for district attorney, he implied that his office would make
holding Trump “accountable” a priority. That sales pitch ended up getting
him elected in 2021 in a district dominated by liberals. Realistically, you
couldn’t ask for more evidence of a political motive.
“It is fundamental to our American system of justice that
the government prosecutes cases because of alleged criminal conduct regardless
of who the defendant happens to be. In this case the opposite has happened,”
Sen. Susan
Collins said last night. “The district attorney, who campaigned on a
promise to prosecute Donald Trump, brought these charges precisely because of
who the defendant was rather than because of any specified criminal conduct.”
That’s the whole argument against Bragg’s case in three
sentences. A few days ago in a piece for National Review, former Bush
official John
Yoo went a step further by quoting a famous line from Stalin’s notorious capo,
Lavrentiy Beria. “Show me the man and I’ll show you the crime,” Yoo wrote,
imputing that attitude to the various prosecutors who have charged Trump over
the past 15 months.
Weeks before he was indicted in Manhattan last spring, I laid
out my own misgivings about the charges. If you’re going to drop a legal
atomic bomb on an already fraught presidential race, it has to be for something
graver than falsifying business records nearly a decade ago. There’s no better
way to cultivate the sort of contempt for institutions on which Trumpy populism
thrives than for its opponents to treat
respect for civic norms as conditional.
A conscientious citizen is obliged to worry about this.
But a conscientious citizen is not obliged to sit quietly while post-liberal
cretins in Trump’s cult disingenuously lecture them about it.
Let’s talk about Ken Paxton.
***
Show of hands: Who thinks Ken Paxton, out of solemn
respect for civic norms, would decline to indict Joe Biden if he had probable
cause to believe Biden had committed a crime?
Paxton is the same Trump sycophant who filed the inane
lawsuit after the 2020 election that sought to exclude the electoral
votes of swing states won by Biden. Had he prevailed, America would have faced
a constitutional crisis unlike any since 1860. Paxton also happens to be so
corrupt that he came this close to being impeached and
removed as attorney general by a legislature dominated by his own party. He
avoided that fate only because Trump
himself intervened on his behalf.
It’s not “norms” that’s stopped him from prosecuting
Biden in Texas. It’s the fact that, unlike Alvin Bragg, Paxton doesn’t have
evidence of a crime. The same goes for House Republicans’ endless investigation
into the president. If Reps. James Comer and Jim Jordan had the goods, they
would eagerly impeach Biden in an election year. In fact,
refusing to do so out of concerns for “norms” would likely mean the end of
their careers once Trump got wind of their “disloyalty.”
They haven’t impeached Biden because they can’t find
anything to pin on him. Full stop.
Bone-deep dishonesty about respect for norms is the first
thing to recognize in the dark warnings today that “two can play at this game!”
from people who enthusiastically supported a coup attempt three
years ago. Coup apologists do not care about norms, by definition.
They’re not angry that Democrats haven’t shown proper respect for electoral
fair play by convicting Trump, they’re angry that this was something done to
their side rather than something their
side did to the other.
The entire point of Donald Trump’s worldview is to
be unapologetically ruthless in seeking advantage, norms be damned.
And from the jump, the right has embraced it. “The party that has thrice
nominated a greedy, prideful, mendacious, wrathful, bigot who gleefully
slanders others, admitted to sexual assault on tape, [and] defrauded poor
people who attended his fake university somehow believe they have been taking
the moral high ground?” an astonished Tim
Miller asked today about the sudden Strange New Respect for norms on the
right.
I think they do believe it. I get the sense from many
Trump supporters that they’d be willing to go much further than a coup or
putting Joe Biden on trial in the name of excluding leftists from power
permanently and should be appreciated for the “restraint” they’ve shown thus
far. The sentiments we’re seeing on social media today, e.g., “I used to hate
Trump but then he got convicted for a crooked cover-up of a hush-money scheme
so now I’m a fascist,” suggest that the verdict in Manhattan has become a timely
excuse to shed a little more of that restraint.
Being MAGA means forever blaming others for your own
illiberal impulses.
Another strain of dishonesty in the backlash to Trump’s
conviction is the particular focus on Alvin Bragg. As noted, there are sound
reasons to find his handling of the case problematic. It smells of politics,
it’s legally shaky, and it’s caused an enormous amount of civic tumult already
over crimes that simply aren’t that serious. He didn’t need to bring these
charges.
The dishonest part is that most Republicans whining about
Bragg today would be whining just as much if Trump had been convicted in one of
the other three cases pending against him. And those cases are considerably
stronger on the evidence and significantly graver with respect to the
crimes they allege: One has to do with Trump’s chicanery in trying to overturn
the election, another has to do with his election tampering in Georgia, and the
third has to do with him obstructing the Justice Department’s effort to recover
classified material stashed at Mar-a-Lago.
All of those speak directly to his fitness as president.
Someone who cares earnestly about norms and good governance should want him to
answer those charges. His supporters emphatically do not, needless to say.
Even conservatives who should know better, like John Yoo,
aren’t above trying to delegitimize the other three cases by lumping them
together with Bragg’s much weaker indictment. “In bringing a series of deeply
flawed cases against Trump,” Yoo wrote,
“both federal and local prosecutors have … targeted an unpopular figure first
and looked for the crime second.”
Pure nonsense. The truth is literally the opposite:
Trump’s coup plot was so egregious, and his concealment
of classified documents so brazen, that he all but dared law enforcement to
hold him accountable for either. No one had to “look” for the crimes; he
committed them in plain sight, seemingly believing that his political stature
would shield him from accountability.
His fans seemed to believe it too. Their problem with the
Bragg case fundamentally isn’t that it’s too weak to justify prosecuting him,
it’s that they regard any attempt to hold Trump criminally accountable as per se unfair
so long as he’s active in politics. The tantrum they’re throwing today
would hardly have been different had he been convicted in the January 6 case or
the Georgia case or the classified documents case. They want Trump placed above
the law, not just in Manhattan but everywhere.
Sometime soon the Supreme Court will rule that, no, of
course presidents don’t enjoy “absolute immunity” from criminal
charges for anything and everything they might do while in office. When that
ruling is issued, pay attention to how the MAGA droogs screeching about a “banana republic” today
react. Are they pleased that the judiciary struck a blow for the rule of law by
refusing to grant monarchical privileges to the head of the executive branch?
Or are they screeching again?
***
Another question: Does Alvin Bragg’s case against Trump
gain any legitimacy from the fact that it ended with a conviction?
One can argue that it doesn’t, as Americans have been
lawfully convicted of all sorts of dubious crimes over the last 200-plus years.
Rosa Parks was found guilty of disorderly conduct for refusing to give up her
seat on a bus to someone white, entirely by the book at the time. I don’t think
the fact of a conviction redeems Bragg’s decision to pursue a case whose civic
cost will grossly exceed the benefit of holding Trump to account for falsifying
business records.
But most of us would agree that the case would have lost legitimacy
from an acquittal, no?
Some Trumpers are putting on a brave face today by
boasting that his conviction will end up helping him in the
polls (it’s certainly helped his
fundraising!), but that has a doth-protest-too-much air about it and not just
because it makes his determined efforts to delay his other trials hard to
explain. The obvious truth is that an acquittal would have been a tremendous
political victory for him. He’d have beaten “the deep state” at its own game;
the verdict would have been seen as validation of the right’s critique that
Bragg’s case was a castle built on sand, illegitimate to its core. The jury had
seen through Democrats’ “lawfare” and repudiated it, we’d be told.
Acquittal would have almost guaranteed a Trump polling
bounce, I think. It would have cast doubt by association on the merits of the
other cases pending against him and given undecided voters moral cover to
conclude that civic concerns about a second term for him must be overblown.
Instead, we have a conviction. And insofar as a
conviction does anything to redeem Bragg’s case, it’s this: Twelve citizens who
aren’t part of “the deep state” looked at the evidence and concluded, “Yep, he
did it.”
Wade through right-wing social media today and you’ll
find endless comparisons between Trump and famous martyrs of oppressive legal
systems, each one stupider and more offensive than the last—Alexei Navalny,
Aleksandr
Solzhenitsyn, the apostles,
even Jesus
Christ himself. The wrinkle in Trump’s case is that he was prosecuted using
the same procedures that Republicans typically take for granted as hallmarks of
due process. He was indicted by a grand jury; he had the right to remain
silent; he mounted a defense, albeit not
very effectively; and not until 12 Americans drawn from outside the justice
system said so was he held responsible.
When Lavrentiy Beria said “find me the man and I’ll find
you the crime,” that isn’t what he had in mind.
If they can do it to him, they can do it to you,
some Trump apologists warned after the verdict, neglecting to explain why
“they” haven’t “done it” to all manner of other prominent Republicans like Ron
DeSantis. But it’d be truer to say that if they can do it to you, they can do
it to him. That’s what it means for someone to not be above the law: Trump gets
the same rights and procedures in court that you would if you were charged with
a crime. How else should a country that doesn’t recognize titles of nobility
operate?
Frankly, you’ll get less due process than he got. If
you’re ever on trial and the presiding judge finds
you in contempt 10 times, the penalty will be more than a fine and a
lecture, I promise.
Had Trump been acquitted, the idea that if they
can do it to him, they can do it to you would have been more potent.
It would have been outrageous that Bragg had brought a case like this to trial
that couldn’t withstand a jury’s scrutiny. The DA would have smeared the
Republican nominee for president with allegations of crimes that the evidence
ultimately couldn’t prove. In the middle of a national campaign, he would have
abused the power of the state to baselessly impugn a political figure despised
by his party.
But it wasn’t baseless, it turns out. Trump did it. Does
that count for anything?
It does not, it seems. The jury’s verdict means so little
to Trump supporters that Larry Hogan, the GOP’s nominee for Senate in Maryland,
was all but excommunicated
from the party by Trump’s campaign manager when he tweeted that
Americans should “respect the
verdict and the legal process.” Literally overnight, believing that no jury
in a blue district can fairly convict a populist hero has become a Republican
litmus test.
That’s post-liberalism in its glory. One’s respect for
the system depends entirely on its ability to deliver the desired outcomes, not
the desired procedures.
***
Every pundit who comments on the trial is professionally
obligated to predict whether the verdict will help Trump in the polls or hurt
him.
There are good arguments both ways. Maybe the supernova
of media coverage will reach some of those “disengaged
voters” we’ve heard so much about lately and move
them into Joe Biden’s column. Or maybe it’ll convince a bunch of partisan
conservatives who’ve been looking for excuses to support Trump to finally take
the plunge: Thanks to Democrats, their only choice now is to defend the rule of
law by reelecting a guy who’s still facing 57 criminal charges related to
election tampering and national security and whose last act as a public
official four years ago was trying to stage a putsch.
Whether you think Trump will benefit or not from the
verdict is, I suspect, a function of how civically perverted you believe
Americans generally and the right more broadly to be in 2024. Is this country
so far past saving that a jury conviction on felony charges might actually increase a
candidate’s presidential chances?
You can guess my answer to that.
I’m okay with it, though. Lately I’ve found that the
likelier it becomes that Trump is reelected, the more at peace with it I am.
For this simple reason: Those who vote for him will deserve what he does to
this country in a second term. Truly.
And there’s some moral satisfaction in that. In a
properly functioning democracy, the people get the government they deserve. Our
democracy must be functioning properly because we deserve Trump and I think
we’re going to get him.
“If you took a Time Machine and told Republican leaders
in 2015 that Trump would end up being convicted on some porny business-fraud
stuff, I’m sure they would have been shocked and assumed no possible
explanation except the end of democracy,” Semafor’s Benjy Sarlin joked
on Friday. But that’s not really a joke. That Trump would get tangled up in all
manner of unethical and eventually illegal behavior, that he would turn
politics into an authoritarian clown show, that his personality cult would
become a cancer on American institutions, was apparent from the start of his
political career. The Never Trump faction emerged early for a reason.
Republicans either never reckoned with his destabilizing
influence or they grew to cherish it, even after January 6 when a credible
populist like DeSantis presented himself as an alternative. So, nine years
later, the ethos of Trump’s party is a sinister twist on Beria’s sinister
quote: Show me the man and I’ll show you why he can’t ever be held accountable
for the crime.
In the end, I think the only thing to celebrate about the
verdict in the Bragg case is that it’ll make a Trump victory in November a bit
more embarrassing for the United States. The coup plot, the impeachments, the
hide-the-documents fiasco at Mar-a-Lago, the comically over-the-top demagoguery
in which he now routinely engages on the stump are all deeply humiliating in
The People’s Choice, but “convicted felon” will make the disgrace we deserve
that much more robust.
Maybe something good will come from the Bragg case after
all.
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