Cromwell

The GOP, of course, is saying it is too little, too late. The left says it smacks of Trump, which it does. Why is Biden doing it?

My guess is that Biden is actually hoping that a Ninth Circuit judge will immediately issue an injunction prohibiting the enforcement of the executive order. He will then have the legal ammunition necessary to blame Trump and the GOP for refusing to support the virtually identical bipartisan legislation. He can further argue that Trump’s plans to use the military to facilitate the construction of vast migrant camps and mass deportations will suffer the same legal fate, so, in effect, Trump is softer on the border than he is.

The difference, of course, is that Trump would almost certainly ignore the court order. That’s the beginning of the slide to despotism, which is a problem of a completely different magnitude.

The parallels between the Trump and Hunter Biden cases are obvious. Both were charged with lying on paperwork; both faced trial before judges of the opposing party; and, in all likelihood, neither would have been charged if his name had been Smith.

But there are differences, as well, and they matter. The Hunter case is legally straightforward; the Trump case was not. The jury pool in the Hunter case is probably more favorable to the defendant than in the Trump case, as the man on golf cart is widely (and justly) despised in his old hometown. The Trump prosecution was tied to a much larger narrative, election fraud; Hunter is accused of telling a single lie. Oh, and Trump is evil and dangerous; Hunter is just pathetic.

I suspect Hunter will be convicted. Will I rail about the unfairness of the system? No, because, unlike the leaders of the GOP, I’m not a cynical opportunist, and in any event, I don’t care about Hunter. He isn’t the president; he’s just a grifter with lots of trauma in his past that explains his behavior.

There has, as you would expect, been plenty of right-wing blather about the outcome of the Trump trial over the last week. What kind of commentary is fair, and what isn’t?

It is completely fair to point out that the prosecution’s legal theory was convoluted, and that a few of the judge’s decisions were arguable. Those issues are properly decided by a New York appellate court (not the Supreme Court, Mr. Johnson). In addition, you can make a good faith argument that even if Trump was guilty, the prosecution was unwise, because the crime was too limited and remote to justify its divisiveness. I wouldn’t agree with either of those points, but I would respect them.

It is not fair, however, to say that Trump’s guilt wasn’t established by the evidence, or that the jury was biased, or that the judge was corrupt. If you take any of those positions, you are questioning the premises of the legal system without any evidence and exposing yourself to the argument that you are a hypocrite. After all, Hunter Biden is being tried for no obviously good reason for a victimless crime before a Trump judge even as we speak. More on that in a later post.

Larry Hogan had the audacity to say that the jury verdict in the Trump case should be respected. For that apparently banal comment, he was accused of being a RINO by the RNC. What does that tell us?

The Republican Party used to stand for limited government, traditional values and institutions, and a robust national defense. That devolved into unquestioning support for tax cuts for wealthy people and cultural intolerance after the Reagan presidency. Now, it seems, even that malignant ideology is gone; the GOP defines itself as the party that stands unconditionally behind Donald Trump no matter what he says or does on any given day.

In other words, Ben Sasse was wrong; American conservatism is, in fact, about the weird worship of one dude.

If Trump wins, it will be with the help of the Supreme Court, which has gone beyond the call of duty to delay his January 6 trial. In addition, while the “major questions” doctrine would apply on its face to administrative initiatives generated by Republican as well as Democratic presidents, don’t hold your breath waiting for that to happen. “Major questions” will go into hibernation in the Court the day Trump is inaugurated.

Don’t expect him to show any gratitude, however. In fact, he’s going to make a point of flouting court orders he dislikes, including those from the Supremes, to the embarrassment of all of the reactionary justices except Thomas and Alito, who might as well be wearing MAGA hats on the bench. As I’ve noted previously, that kind of lawless presidential behavior will create a precedent that will ultimately serve the interests of progressives. Be careful what you ask for, because you might get it.

Even if Trump wins, there will be no red wave, just as there was none in 2020, because House and Senate candidates are rarely held responsible for the perceived condition of the country on the date of the election. As a result, even if the GOP wins control of both the House and the Senate, the margins will be extremely slim, and the filibuster will remain in place. What does that mean for Trump’s agenda?

Not much, because the agenda revolves around executive action, not legislation. Trump will be attempting to pull power away from the other two branches of government into the executive branch. Congress will be useful for keeping the lights on, cutting taxes, and reducing spending on Biden’s green energy programs. That’s about it.

And none of the GOP members of Congress will have the nerve to complain.

Biden is apparently taking a relatively conservative approach to Trump’s conviction: supporting the jury’s decision and the rule of law, but nothing more. Is that wise?

Yes, for two reasons. First, it would be foolish to say anything to reinforce the opinion held by the right that he was somehow responsible for the New York prosecution. Second, he probably has bad news coming from the judicial system regarding his son and the workings of liberal government over the next few weeks. He will look like a hypocrite if he gloats about Trump and then whines about the unfairness of the system thereafter.

That doesn’t mean, of course, that his surrogates can’t do a bit of gloating. He also isn’t precluded from commenting on the verdict, and Trump’s decision not to testify, in a barbed way during the debate.

Notwithstanding the emotional satisfaction it would give to Trump’s opponents, the man on golf cart is highly unlikely to get jail time, for the following reasons: he has no previous criminal record; he’s old; and the felonies he committed are of a fairly low level. In addition, the Secret Service would have to come with him, which would disrupt the prison routine, and it would play perfectly into his martyr narrative. It’s not going to happen.

So what is a suitable sentence? I think he should be required to put on a jumpsuit and pick up trash in Manhattan once a week for several years. Community service is a concept with which he is unfamiliar; perhaps he should get used to it. It would humiliate him without making him a martyr. He might even lose weight in the process, which would be good for his health.

Life in the time of Trump.

The verdict has come in.

Guilt on every single count;

For Bragg, it’s a big win.

The left has no time to rejoice;

The red base will explode.

Will the rule of law survive

As faith in it erodes?

Trump is back at Trump Tower with one of his Secret Service agents after the trial.

SS: Wow, bad day, boss!

T: At least I’m free now. I don’t have to sit in that cold courtroom with all those fascists and communists anymore. I’m back in control again. I can go out and campaign again. I can focus on kicking Biden’s ass.

SS: It must be hard, sitting in this place, to think of yourself as a common convicted felon.

T: I’M NOT! I’M A VICTIM OF A RIGGED SYSTEM! THE JUDGE WAS CORRUPT AND THE PROSECUTORS ARE ANIMALS! THE JURORS WERE ALL MANHATTAN LIBERALS! I HAD NO CHANCE!

SS: So what are you going to do about it?

T: I WANT REVENGE! I’LL GET ELECTED, AND THEN I’LL PUT ALL THOSE PEOPLE IN JAIL! BIDEN WILL NEVER SEE THE LIGHT OF DAY AGAIN!

SS: What does this have to do with Biden? The Manhattan DA doesn’t work for him.

T: OF COURSE HE DOES! THEY ALL DO! THEY’RE ALL ON THE SAME TEAM, AND THEY’RE MAKING AMERICA A BANANA REPUBLIC! THAT’S WHY I HAVE TO WIN THE ELECTION–TO CLEAN HOUSE AND START OVER AGAIN!

SS: I thought you were supposed to be running to help the American people with stuff like inflation. You make it sound like the campaign is only about your personal grievances.

T: I’m bigger than America. It’s all about me. If I do well, the little people will do OK.

SS: Well, I just hope you don’t go to jail.

T: Why do you care?

SS: Because I’ll have to serve the time with you to protect you. You’re not that popular with those people, you know.

T: Well, just make sure to vote for me in November. That will keep you out of jail for sure.

SS: I’ll keep that in mind.

If Trump had taken the stand, admitted the sexual encounter and the hush money payment, but denied having any meaningful involvement with the falsified records, the outcome of the trial could have been different, as it is possible the jury would have taken his word over Cohen’s on that one point. The problem, of course, is that Trump would have been the world’s worst witness, for the reasons I have described on many previous occasions. Subjecting him to cross-examination would only have made matters worse.

Alternatively, the defense team could have admitted most of the prosecution’s case, thereby building some credibility with the jury, while attacking the case at its two most vulnerable points: the secondary crimes and the creation of the falsified records. Trump’s standard approach to all legal matters–deny everything– undoubtedly made that impossible.

The bottom line is that when Trump gets up tomorrow morning and views himself in the mirror, he will be looking at the guy who is responsible for losing the case.

Trump is guilty on all counts. Now what?

As to the consequences for the election, you can be certain this will have no impact on the base; if anything, they will take it as still more proof that he is a martyr for their cause. The real question revolves around undecided swing voters. Can they bring themselves to vote for a convicted felon? We will have some idea of that when we see the next round of polls, but we won’t really know until November.

The other question, in my mind, is whether there will be a violent response from members of the extreme right. I think there probably will be. We’ll see.

Having read the jury instructions, I feel sorry for the jury. This case is even more legally convoluted than I thought. I knew the prosecution was required to prove the existence of two different violations of law; in fact, it has to prove three.

The bottom layer of this cake is the allegation that business records were falsified with involvement by Trump with the intent to defraud, which must include the commission or concealment of a second crime. The second layer–the second crime referenced in the business records statute– is a conspiracy to promote or prevent the election of a candidate by unlawful means. The top layer–the one I was not aware of–involves the “unlawful means,” which means by committing a third crime. The prosecution has thrown out three different theories for that: an illegal campaign contribution under federal law; the falsification of other business records under state law; or violations of state tax law.

I don’t really know what evidence has been put on with regard to the “unlawful means;” the live blogging has been unhelpful on that point. I can’t see where state tax law violations or the falsification of business records after November 2016 in any way resulted in the promotion or prevention of Trump’s election. As I see it, the only proposed “unlawful means” that had anything to do with the outcome of the election was an illegal campaign contribution. Did the prosecution prove that? I don’t know; we’ll see what the jury thinks.

In recent months, it has appeared that the House crazoids–MTG, Matt Gaetz, and the like–are more royalist than the king. Trump has ostentatiously supported Mike Johnson even though the Speaker has taken positions on important issues that are clearly inconsistent with his. Will this continue in a second Trump term?

Trump likes being the focus of everyone’s attention. He doesn’t need any competition in the chaos department. The MAGA crazoids will lose their purpose once he is back in power.

The closing argument for the defense spent a bit more time on Stormy Daniels than I expected, but otherwise, it was what I anticipated–lots of memorable attacks on Michael Cohen and plenty of mud on the wall. In my view, the scattershot approach probably burned some credibility with the jury on the factual issue that is genuinely debatable: the lack of corroboration as to Trump’s role with the false records. You can probably attribute that to Trump’s desire for complete vindication, not to any lack of competence on the part of his lawyers.

The prosecution’s closing was at least an hour too long. Nevertheless, it is fair to say that it demolished the arguments of the defense on issues such as whether Cohen was freelancing or whether the payments were actually reimbursements. I don’t think there is any real likelihood the jury will decide for the defense on those points.

The real issues in this case are legal. What was the prosecution required to prove relative to the intersection of the falsified records and the alleged election conspiracy? After all, the records were generated after the election, and they weren’t in the public domain.

As far as I can tell, neither side said much about that during the closing. My guess is that means the judge has told them he will be giving jury instructions that favor the prosecution. We’ll find out today.