Trump convicted of everything

Q: Now what? A: Nothing good.

Donald Trump was convicted by a jury this afternoon of all 34 felony counts lodged against him by Manhattan DA Alvin Bragg. As I said yesterday, I thought it highly likely that Trump would lose this trial, although I thought it unlikely that the jury would convict him of everything. What I missed was that the 34 counts were, in essence, slightly different pieces of the same pie, and that if the jury saw the pie as Bragg portrayed it, the jury would eat the whole thing. When the verdict was reached so quickly, I saw the error of my ways.

I’m not going to address in this post the short-term consequences of the conviction; that’s for later. For now, I want to look at the longer term consequences, which I think are big and ominous. I anticipated some of it when giving talks to law students last fall and winter.

What was behind this prosecution, really? (I’m not talking about Bragg’s political ambitions, although that obviously can’t be dismissed). No realistic person I’ve talked to thinks it was about Trump’s tryst with a porn star or his mislabeling the hush money payments. That’s bad behavior to be sure, but who other than Donald Trump would have faced nearly three dozen felony counts for it?

Let’s take a step back. To his critics, what’s the real danger with Trump?  It’s not the porn star and the payments. It’s not his mishandling of the classified material he took from the White House (i.e., Jack Smith’s Florida-based indictment), which other Presidents, including Joe Biden, have done as well. It’s not even his sleazy gamesmanship with the government’s subpoena for those documents, important though I personally believe that is in terms of disrespect for law.

The burning gripe against Trump — and what the visceral, over-the-top antagonism (if not hate) toward him is really about — is his suborning the January 6 rioters  to impede the counting of  electoral votes and, thus, to sidetrack in one way or another the peaceful transfer of power to Biden.  Most people I know, liberal or conservative, think that was by far Trump’s most egregious sin — a sin against democracy itself.

But here's the less explored part, if only we take a moment to think about it.  It's precisely the peaceful transfer of power that Trump’s numerous prosecutions, and today’s outcome, put at risk.

Why?

Because the entire, irreplaceable predicate of the peaceful transfer of power is the losing side's faith that the winning side won’t try to put them in jail.  Trump's prosecution is a dagger in the heart of that predicate like none this country has seen.  We have not asked ourselves with the sobriety the moment demands whether that is too high a price to pay to hold even a guilty and unrepentant man to the punishment that, strictly as a matter of campaign finance law, he may have earned. Or at least we haven’t asked ourselves until now. We’re about to start asking, and I don’t think we’re going to like the answer.  

It’s true that prosecuting a powerful man like Trump could  have a bracing effect on future office holders that you really can wind up in trouble, and maybe in jail, for your lawlessness. But the more probable outcropping of Trump’s prosecution, and today his conviction, will be much less wholesome. As I said in my talks to the law students:

It's less likely to spawn an embrace of prudence than an appetite for revenge.  The Democrats’ appetite will be whetted by their success — today and perhaps in the months to come — in putting a despised Republican on the road to a humiliating probation and, possibly although unlikely, to the slammer. The Republicans’ appetite, once they return to power, is too obvious to elaborate: You used the law to screw us and now we’re going to use it to screw you: If we’re going to have lawfare, ladies and gentlemen, we’re going to have it both ways.

These indictments, and today’s conviction, in particular, will launch, not an era of renewed accountability, but a cycle of recrimination. In the real world of hardball politics, a cycle of recrimination  is certain to degrade rather than enhance whatever chances people of good faith have left to nourish the rule of law.

One of the foundations of trust in the rule of law is our faith that it won’t be infused with politics. With today’s developments, that foundation, I fear, looks a lot shakier.