There is no way to evaluate the total damage inflicted on Trump’s candidacy by Bragg’s prosecution until we learn what Judge Merchan will do.
There is no way to evaluate the total damage inflicted on Trump’s candidacy by Bragg’s prosecution until we learn what Judge Merchan will do.
I ’ve been surprised at the punditry about the fallout of Trump’s convictions in the Manhattan criminal trial. It made sense to say that we’d needed to wait for a couple of weeks to get a reliable read on how the public was processing the jury’s guilty verdicts. That is, rose-tinted pronouncements by Trump enthusiasts that the convictions had no meaningful effect on the race — or even that the former president’s 2024 bid was somehow helped by his status as a convicted felon because it showed that Democrats had overplayed their lawfare hand — were daft.
The former president and, more to the point, de facto Republican presidential nominee, was always going to be hurt by being found guilty in a criminal trial. The question has been whether it would be minor or major damage.
We can already assess, based on polling, that it’s at least meaningful damage. Maybe it won’t be major, we’ll have to see — in a tight race, any meaningful damage could prove major. But that brings me to my second point: While Trump has been hurt by the convictions, he’s also going to be hurt by the sentencing, which hasn’t happened yet — it’s still three weeks away.
There is no way to evaluate the total damage inflicted on Trump’s candidacy by Bragg’s prosecution until we learn whether Judge Juan Merchan will mete out a prison sentence. On July 11, with the country’s attention again riveted to the dingy Manhattan courthouse, we’ll hear what the judge has to say about the case — and, as I’ve adumbrated, Merchan is sure to frame the conviction as a major felony theft of the most important political office in the nation and the world, not as a series of trivial bookkeeping miscues.
It’s wrongheaded to assume we can already evaluate how badly wounded Trump’s campaign will be. We need an answer to the question everyone is asking — or, at least, the question I’ve been asked a zillion times since Trump started getting indicted about 15 months ago. To wit, could we really elect a president who is subject to an incarceration sentence, or even serving one?
Don’t get me wrong. I’ve been very clear about how atrocious I believe the prosecution has been from the start, how the charges were manufactured, and how no one should do ten seconds in jail over this nonsense. I’ve also observed that the New York courts will almost certainly grant Trump release pending appeal. The upside of that is: that he won’t be remanded to Rikers or Sing Sing anytime soon. But there’s a downside: The fact that a prison sentence won’t actually land Trump in custody gives Merchan a more powerful incentive to pronounce a stiff prison sentence. Remember, Democrats don’t much care about whether the convictions and sentence hold up on appeal a year or two from now (highly unlikely); this is all about messaging against Trump in the stretch-run of the 2024 campaign.
In any event, we’re not talking about what I think of the case, or what politically engaged people in general think of the case. We’re talking about what the voting public will think of the case.
Way back in 2008, I published Willful Blindness, a memoir about prosecuting jihadists in the 1990s. In it, I critiqued the then regnant-counterterrorism strategy of deeming international jihadist organizations as a law-enforcement problem fit for courtroom prosecution, rather than a national-security challenge fit for a war footing. The Clinton administration was committed to the courtroom-prosecution approach, in part, because of its public-relations potential.
The criminal-justice process projects the illusion of vigorous government action. In reality, few terrorists were actually prosecuted in the eight years between the 1993 World Trade Center bombing and the 9/11 attacks — I believe the number was 29. But if you randomly polled Americans on how many terrorists they believed had been prosecuted by the Clinton administration, the number would have been much higher. That is because a prosecution has many inflection points for grabbing public attention — arrests, searches, indictments, pretrial hearings, trials, sentencings, etc. To people who follow the news only casually, this thrum of proceedings can make a handful of defendants seem like dozens. It depicts a government constantly, methodically bringing the bad guys to heel — especially if the government is run by a Democratic administration whose media allies cover its prosecutions in glory.
Trump has now begun to run this Democratic-orchestrated public-relations gauntlet — nightmare is the better word. The indictments were just the start. Now, the trials have begun. (And as I said on Wednesday, I suspect there will be at least one more: the January 6 case in Washington, D.C., the Democrats’ Big Enchilada — or what Judge Merchan calls Trump’s “federal insurrection matter”).
Criminal trials, most of the time, end in criminal convictions. Then comes the coverage and public debate over sentencing, soon to be followed by the very likely incarceration term and frenzied debate over what it means for Trump’s candidacy. Meantime, over the next few days, the Supreme Court will decide immunity and obstruction issues that will dictate the course of the J6 case, even as the federal court in Florida — handling the illegal documents-retention indictment — is conducting proceedings over weighty pretrial motions. We’ll also have such storylines as whether Trump will get bail pending appeal of his Manhattan convictions, and whether special counsel Jack Smith and Judge Tanya Chutkan will be able push the J6 case to trial despite the imminence of the November election.
At each juncture, there is going to be public reaction. None of it will be good for Trump, and all of it will register in the polling. Perhaps none of it will be catastrophic on its own, but the cumulative effect is very likely to be material — particularly in a close race, and particularly with voters who are not political junkies (i.e., the vast majority of voters). Americans have suddenly started hearing a lot about Trump’s being a convicted felon. Soon it will be Trump’s being sentenced to prison, Trump’s being put on trial again, and so on.
After weeks of Trump trying to make lemonade out of lemons with jaunty campaign rallies and some snappy, pretty well-crafted public statements outside the courtroom while the Manhattan trial ensued, reality has coldly begun to intrude. A Fox News poll released a couple of days ago has Biden ahead, 50–48. Of course, all the familiar caveats apply — it’s one poll, it’s within the margin of error, we don’t have a national election but rather 50 elections in the states, yada, yada, yada. Still, it’s a shift — it’s the first time Biden has been ahead of Trump in Fox’s polling in nine months. And while some of the shift is said to reflect marginal ease in the public’s anxiety about the economy, the salient factor is Trump’s convictions. The Democrats are branding him a “convicted felon.” Politico and NBC News report that the convictions are hurting Trump with independents, with about a quarter of them saying the guilty verdicts matter to them and make them less likely to support him.
This is already leaving a mark . . . and, to repeat, he hasn’t even been sentenced yet.
I’ve been a broken record on this for three years, so I won’t belabor the point . . . too much. I’ve never believed Trump could win the 2024 election. I will admit: Biden has been much worse than I wagered he’d be — not just disastrous policy (what he’s done to border security and thus national security may be the worst thing an American president has ever done), but he is patently too old and neither physically nor mentally up to the demands of a job that dramatically ages incumbents far younger and smarter.
Nevertheless, Trump has demonstrated over nearly a decade in politics that he has a low ceiling (under 47 percent). The phenomenon we’ve seen over the past year is Biden’s support collapsing, not Trump rising. To the contrary, Trump never breaks through his ceiling. Democrats wish they had a different nominee, and many will not vote in this cycle; the vast majority, however, will vote for Biden and Harris because, for Democrats and progressives, staying in power matters more than which Democrat is nominally at the top of the ticket.
By contrast, somewhere between 10 and 20 percent of Republicans don’t want to be in a Trump party and will not vote for Trump under any circumstances. He might be able to slice into that a bit by a vice-presidential pick who entices Reagan Republicans without demoralizing MAGA, but only so much. The candidate is Trump, Trump is an incorrigible known quantity, and the nation is not changing its mind about him.
For him, the polls go down from here. It won’t completely collapse because his base, while a minority, is unwavering. But most of the country is not — and the polls still tell us most Americans are predisposed against Trump. Regardless of bitter reaction to lawfare on the right, a slight majority of Americans appears to believe the Manhattan trial was just and the verdicts correct. This majority perception is going to get worse for Trump as he get sentenced and as he faces more criminal proceedings.
My prediction that Trump can’t win has never been rocket science or a conspiracy theory. It’s just a basic understanding of how the political calendar works, coupled with an intimate understanding of how the criminal-justice system works.
The indictments, quite strategically, came at the primary stage, when the consequential audience was the Republican base, in which Trump devotees are disproportionately influential. The indictments had the Democrats’ desired effect to rallying support to Trump and preventing better, more electable Republicans from gaining traction. It wasn’t even a contest.
To the contrary, the trials, convictions, and sentences were always going to take place in the months before the election. That was by design. That’s when the consequential audience would be the national electorate, which is predisposed against Trump — and for whom Trump devotees, far from being disproportionately influential, are a net negative factor.
The pre-election proceedings were sure to produce a drumbeat of bad news for Trump — the average, casual, not politically obsessed American hears: Trump stole the 2016 election; he paid off a porn star who now suddenly claims their tryst may not have been consensual; he employed Michael Cohen for a dozen years and for all the reasons he now depicts Cohen as a lowlife; the jury found him guilty of not one but 34 counts; he’s looking at a prison sentence. The drumbeat of criminal proceedings is now magnified with negative-ad electioneering which, with the election less than five months away, is already intense.
We’re not talking about whether this is fair. The point is whether it’s effective.
This gets worse for Trump, not better. Just watch what happens when he gets sentenced on July 11. If you let your righteous anger over lawfare cloud your judgment about the effect of lawfare, you will be making the same tragic mistake made by Republicans. They had good candidates, any of whom could have thrashed Biden. With open eyes, they chose to nominate the only candidate who could get Biden reelected.