How big a deal is Trump’s “hush money” trial?

For starters, this is a criminal trial and a conviction could land him behind bars. Trump, with a loyal following of millions, is betting he’s too important to lock up. He might be right. Any other defendant behaving like he has would’ve been jailed for contempt by now. He has behaved like a strongman in a banana republic, taunting the judge, attacking witnesses, and testing the outer limits of rule of law. If we are still a nation of laws, he should do some jail time, apart from the verdict in the case.

What’s hugely in Trump’s favor is the crime he’s accused of is too subtle for many people to understand. Least of all will his supporters understand it, and think of it as wrongdoing. The media calls it a “hush money” case, which makes it appear he’s being prosecuted for paying a woman to keep quiet about an affair, and many people will shrug and decide that’s between her and him, and he can spend his money however he wants to.

He’s actually being prosecuted for falsifying business records, but even that’s not a big deal if no tax evasion is involved and no one was defrauded. Even under New York law it’s not a big deal; standing alone, it’s a misdemeanor. The penalty for that, in effect, is a traffic fine. What could make it a felony is if he did it to commit another crime, in this case influencing an election.

To prove that, prosecutors must convince the jury that was his motive, not hiding the affair from his wife. Normally the prosecution doesn’t have to establish a motive for a crime, but in this case they do. Since the evidence is virtually a given that Trump committed the falsification act, the defense’s second best shot at acquittal is casting doubt on the prosecution’s theory of motive. Remember, it takes only a reasonable doubt to acquit.

His best shot at acquittal is jurors who won’t convict him no matter what he did. This is called “jury nullification.” He doesn’t need all the jurors, only a hung jury; and I feel about 95% certain that if this jury can’t reach a verdict, there won’t be a retrial. Another strong possibility is the jury will convict him on the misdemeanor business record falsification charge, but consider the felony charge of defrauding voters a bridge too far.

Even if he’s convicted of the felony, Trump may be able to shrug it off. Any judge will be reluctant to sentence a presidential candidate to prison, especially for a fraud crime that many Americans will see as victimless. But even if he’s given time, appeals will delay serving the sentence for several years, not in time to knock him out of the 2024 election race. It should be noted, however, that if he regains the presidency he can’t pardon himself from a state conviction, only federal convictions (assuming presidents possess the power of self-pardon, an unresolved legal question).

Let’s say Trump is convicted of the felony and sentenced to prison. He has worked hard to portray himself as a persecuted victim of a witch hunt orchestrated by his political enemies, and probably nearly all of his supporters see it that way. That’s false, but the reason it can’t possibly be true is too subtle for most people’s understanding. Here’s why it can’t be true: Neither the prosecutor, nor even the judge, even if they’re biased against him, can determine his guilt or innocence.

The prerequisite for this prosecution was an indictment, and he was indicted by a large jury (normally about 18 people), a grand jury, of ordinary citizens. The grand jury decides whether there’s probable cause to charge someone with a crime. (The grand jury vote need not be unanimous, but requires a supermajority, say two-thirds). If he’s convicted it will be by another jury, a trial jury, of 12 ordinary citizens, and their vote (whether for conviction or acquittal) must be unanimous or you have a hung jury and mistrial.

A true miscarriage of justice ought to be near-impossible under this system, especially with a prominent figure like Trump. For him to be wrongly convicted at least 24 people on two juries have to be out to get him. In fact, the bias is likely to be the other way; the ordinary people from various walks of life likely will need some extra convincing before they take the step of convicting a former president with a large popular following of a crime that could land him in prison. The sentencing, of course, is out of their hands.

But going back to the scenario where the jury hands down a felony conviction and the judge imposes jail time, would that knock Trump off his perch? I don’t think so. I believe he’ll still have his large following. Trump’s supporters have had plenty of exposure to his character flaws, yet they continue to support him. The obvious reason is they feel he speaks for them in ways other politicians haven’t, and trust him to look out for their concerns, so they brush aside his personal flaws. Not least because there’s no replacement for him; like all charismatic leaders, he created his own revolution, and there is no revolution without him.

Trump found a vacuum in America’s political landscape and filled it. He understood he could shoot someone and not lose his following. He said as much, and believed it; that wasn’t empty bluster. A felony conviction for influencing an election by buying off a woman won’t make a dent in his popularity. He’s done worse and his followers are still with him.

So, is this trial a big deal? Yes, for the rule of law. No one should get away with a crime because of who they are. And he sure looks guilty, if you believe his ex-lawyer and fixer (see story here). But in America’s politics, nothing will change.

Postscript: Trump’s lawyer/fixer and chief financial officer were involved in buying off Stormy Daniels. Both went to prison. Does that look innocent to you? Does he? 

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