Trump’s Very Fair Trial

Shortly after becoming the first former American president to be convicted as a felon, Donald Trump told reporters outside a Manhattan courthouse that the verdict was a “disgrace,” a “rigged trial by a conflicted judge who was corrupt.”

There is a simple, foolproof way to predict when Trump will describe something or someone as rigged or corrupt: when he doesn’t get what he wants. Elections he loses are fraudulent, legal decisions that go against him are rigged, and anyone who opposes him is corrupt. In every single instance, Trump is decrying not a corrupt individual or rigged process, but a person or process that is not corrupt or rigged enough to give him the results he seeks.

Trump’s attorneys did not offer much in the way of a defense during the trial, relying instead on a “haphazard cacophony of denials and personal attacks,” as the former prosecutor Renato Mariotti put it in The New York Times. Manhattan District Attorney Alvin Bragg charged Trump with falsifying business records in an attempt to cover up a sexual encounter with the adult-film actor Stormy Daniels, in order to prevent news of the incident from breaking during the final, crucial weeks of the 2016 election. As my colleague David A. Graham writes, the payments were made through Michael Cohen, a former Trump operative turned prosecution witness, who paid Daniels $130,000 for her silence. The defense failed to convince the jury that Cohen was not a credible witness to Trump’s crimes despite a past record of dishonesty.

[David A. Graham: Guilty on all counts]

Instead, Trump and his allies spent most of their efforts putting the trial on trial, attacking the presiding judge and the process itself in bombastic press conferences outside the courtroom. Trump was far from being unfairly treated—anyone else engaging in such behavior would have been jailed for contempt; rather, Justice Juan Merchan bent over backwards to overlook his antics. Trump violated gag orders by attacking witnesses and attempting to intimidate Daniels during testimony that “at times seemed to be describing nonconsensual sex,” and attacked the judge’s daughter as a “Rabid Trump Hater.” Yet Merchan told Trump, “The last thing I want to do is put you in jail.” In this trial and others, Trump has received special treatment precisely because he is an important political figure.  

Many political writers originally reacted with disdain to Bragg’s charges, treating them as a sideshow to the much more serious state and federal charges regarding Trump’s alleged theft of classified records and unlawful attempt to seize power after losing the 2020 election. It is true that compared with potentially exposing nuclear secrets to foreign spies and attempting to end American democracy, trying to cover up his encounter with Daniels seems like a much less serious crime. But that cover-up, prosecutors said, was also an attempt to influence an election, and the jury convicted Trump on all 34 counts relatively quickly, after two days of deliberation—a sign of the strength of Bragg’s case and a smoothly run trial. Not every jury gets it right, and not every trial is fair. But few of the Republican objections even contest that Trump did the things he was convicted of doing; they simply amount to demands that Trump be able to commit crimes with impunity, because anything less would be political persecution.

Republican lawmakers have settled on rhetoric attacking the trial itself, alleging that, as House Speaker Mike Johnson said, “Democrats cheered as they convicted the leader of the opposing party on ridiculous charges.” That is not what happened. The document-falsification charges Trump faced are relatively common in New York, even if the theory that they could be upped to felonies because of their connection to an attempt to influence a federal election was novel. Trump was convicted, as the Constitution demands, by a jury of his peers in the city where his crimes were committed, in a process Thomas Jefferson described as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” The American Founders considered trial by jury one of the core ideals of the American Revolution, in part because royal judges were considered too beholden to the King.

Republicans are attacking the New York trial because that court was seen as insufficiently beholden to their king. That prosecution proceeded relatively smoothly because right-wing judges lacked the ability to sabotage or delay the process. My colleague David Frum wrote that “it says something dark about the American legal system that it cannot deal promptly and effectively with a coup d’état.” But the culprit here is not “the American legal system.” Trials for the more serious federal charges against Trump have been delayed by a sustained attack on the rule of law carried out by right-wing legal activists embedded in the judiciary who are committed to postponing any trial long enough for Trump to potentially win an election and then dismiss the charges himself. Put simply, Trump is unlikely to be tried for these more serious charges not because of vague problems with the American legal system, but because a lot of federal judges are Republicans who want the leader of their party to get away with committing federal crimes.

The Trump-appointed Judge Aileen Cannon has, as The New York Times reported, “effectively imperiled the future of a criminal prosecution that once seemed the most straightforward of the four Mr. Trump is facing.” She “has largely accomplished this by granting a serious hearing to almost every issue—no matter how far-fetched—that Mr. Trump’s lawyers have raised, playing directly into the former president’s strategy of delaying the case from reaching trial.”

The conservative-dominated Supreme Court, of which fully a third of the justices are Trump appointees, has also gone along with Trump’s legal strategy of delaying a trial as long as possible. “In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment,” the law professor Aziz Huq wrote in February, noting that “a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.” Not so with Trump.

“The reason Trump has nevertheless sought to slow down the immunity appeals process is obvious: to postpone the trial date, hopefully pushing it into a time when, as president, he would control the Department of Justice and thus could quash the prosecution altogether,” Andrew Weissmann and Ryan Goodman wrote in The Atlantic in March. “The Supreme Court has shamed itself by being a party to this, when the sole issue before the Court is presidential immunity.”

Trump’s legal theory that former presidents are immune to prosecution for crimes committed while in office unless impeached for those crimes is so laughably broad that it would allow a president to assassinate a political rival and then avoid impeachment by threatening to slaughter every lawmaker in Congress. Yet the right-wing justices, sworn to uphold a constitutional order in which no one is above the law, seemed strangely intrigued by this assertion of imperial power during oral arguments earlier this month. Justice Samuel Alito, who has not denied that a flag supporting Trump’s attempted coup was flying outside his house just days after it happened, wondered out loud if prosecuting former presidents who try to overthrow democracy might harm democracy.

The right-wing justices are acting like Republican politicians who believe they are obligated to delay the trial of their party leader as long as possible and potentially prevent it from happening. This is not simply my jaded assessment. Today, Speaker Johnson told Fox News, “I think that the Justices on the Court—I know many of them personally—I think they are deeply concerned about that, as we are. So I think they’ll set this straight.”

Even if the justices reject Trump’s absurd legal theories, their dawdling may still prevent a trial from taking place before November. This gamesmanship by the justices on behalf of the party that appointed them bears far more resemblance to a corrupt or rigged process than a trial by a jury of one’s peers does. And that’s precisely the issue: In a Manhattan courtroom, facing 12 ordinary American citizens, Trump could not count on right-wing legal elites to skew the proceeding in his favor. Trump is not angry because the Manhattan trial that convicted him was rigged; he is angry because it wasn’t.

One should take a moment to appreciate the absolute failure of the Republican elite, who have repeatedly refused to hold Trump accountable. Twice Trump was impeached by Congress for interfering in American elections—once by trying to blackmail a foreign government into falsely implicating his political rival in a crime, and once for trying to keep himself in power by fraudulent schemes and violence. Both times, Republican senators spared Trump the consequences by acquitting him.

Whether they did so out of fear of Trump and his followers or because they are on board with his authoritarian project, the result is the same: The head of the GOP is a convicted criminal who holds democracy in contempt and whose objective is seizing power in order to keep himself out of prison. Republicans have only themselves to blame for this outcome.

[Read: The twisted logic of Trump’s attacks on judges]

As the writer Osita Nwanevu noted in March, “The only people who've ever held Trump meaningfully accountable over the last nine years have been ordinary Americans and they've spent that entire time being lectured to and berated by elites who've failed to do anything.” This is overbroad—Democrats impeached him twice—but there is something to it nonetheless. Republican senators voted to acquit twice knowing that Trump was guilty. Most Republican politicians and conservative media figures kissed Trump’s filthy ring rather than ruin their career or even defend their family from his degrading insults. Right-wing jurists have adapted their supposedly ironclad judicial philosophies to fit Trumpist imperatives.

The 12 jurors who convicted Donald Trump will not have taxpayer-funded bodyguards for the rest of their life. They are not protected by reverence for their office or by their connections to power or money. They surely understood that by convicting Trump, they could be subject to harassment and violence, much as others who have refused to do Trump’s bidding have been.

Yet those 12 random New Yorkers showed more courage in convicting Donald Trump, knowing that they could be hounded for doing so, than nearly the entire conservative elite has in the past decade. Small wonder that this same elite is so terrified of the possibility of Trump facing another jury of his peers, an American institution that has so far proved itself resistant to Trump’s corrupting influence.