With jury selection now underway, there’s been a bit of a dust-up in the punditsphere about how to characterize Donald Trump’s first felony case - in which Trump paid hush money to prevent news of an affair from coming out during the 2016 campaign, and then falsified records to cover up what he had done. I’m on team big deal.
First of all: The always-smart Rick Hasen, who is on team “meh”, has a point! The charges here are nowhere near as important as the charges that Trump attempted to overturn the results of the 2020 election, and there’s probably some utility in saving the phrase “election interference” for serious violations of free and fair elections. Trying to suppress some negative information isn’t the same thing as what Trump tried to do after the 2020 election, even if it could have potentially affected the election outcome, and even if it crossed the line into illegal activity.
But give Richard Nixon the last word here: “people have got to know whether or not their President is a crook.”
And while he’s trying to be president again, everything about Donald Trump screams that he is, in fact, a crook.
That’s the context for this trial, and why it certainly is a very big deal.
After all, voters will be asked in a few months whether he’s up to a job which requires him to “take Care that the Laws be faithfully executed.” Or if Trump is simply a crook - as suggested by four indictments, two impeachments, and a wide array of civil cases including one in which he was found liable for sexual assault and another where a judgement against him for business fraud is going to cost him hundreds of millions of dollars.1
Whether this particular instance of breaking the law is small potatoes or not, the context is also – perhaps even more – about his contempt for the law. It matters that Trump’s misbehavior required multiple judges to place gag orders on him, and that he subsequently went right to the brink (at least) of what was still permissible. It matters that he characterizes all of these cases as entirely illegitimate partisan plots. It matters that he routinely has tried to intimidate some witnesses, and that he abused the pardon power when he was president to not only assist his political allies but to help other potential witnesses against him. It matters that when it comes to his political enemies he is quick to say they should be “locked up.”
It matters that he’s made the audacious and preposterous claim that he has absolute immunity.2
Each of these things - each example of him trampling on the entire concept of the rule of law - makes this first trial more important, not less. Legally it doesn’t matter, but politically it absolutely does, and should.
This is why, too, it’s a real mistake to label this event mainly as the first time a former president has been on trial for a felony. That Millard Fillmore never killed someone after leaving office and William Howard Taft didn’t choose racketeering instead of that Supreme Court thing as his post-presidency gig is just trivia. What matters about Trump and this trial is that he is the Republican nominee for president in 2024, and that he doesn’t accept the rule of law.
And that’s why this trial is a lot more than “meh.”
One more thing: I said above that all of these things matter politically. I meant that in the absolute sense, not in the electoral sense. That is, this trial is very important regardless of whether it has any electoral effect at all. But I wouldn’t rule out electoral effects.
Remember: Donald Trump has been perhaps the most unpopular major-party candidates in the polling era, and an unusually unpopular president. Especially in the context of relative peace and, until the pandemic, prosperity. The idea that he “gets away” with things without any cost to public opinion is dead wrong. What’s less clear is exactly which of his many potential liabilities are the ones that repel voters – and whether the effect is permanent or if it relies on constant reminders of what’s wrong with him. It’s certainly possible that being a convicted felon might push some of those on the fence and those cross-pressured (and yes, they do exist) to decide against him in the general election. Either through the accumulation of evidence against him, or because (for those who, say, support Republicans in general but dislike him personally) six weeks or more of a trial could well push the negative personal stuff to the forefront enough to crowd out everything else.
We don’t know if that will happen, but it seems quite plausible to me.
One word of caution: Don’t pay much attention to polls about it; people are notoriously very bad at predicting their reactions to events in this way. We’ll just have to see how it plays out.
At any rate, the main point here is that considering this trial to be an extremely big deal is absolutely correct. Even if there are even bigger deals around the corner.
That’s nowhere close to a complete catalogue. For example, the Mueller report basically found that Trump had committed criminal obstruction of justice multiple times. And there’s plenty of pre-presidency stuff, including the fraudulent Trump University.
As a citizen, Trump certainly has the right to make any motions or claims that will help him in criminal and civil cases. As a politician, he retains those rights - but we are free to judge him based on what claims he’s willing to make, and we should in fact do so. And we should judge him harshly for many of his claims, especially the immunity one.