The unchallenged consensus among political analysts and legal pundits is that Donald Trump benefits every time there is a delay in any of his legal entanglements, especially his four criminal cases in state and federal courts. The idea, which has its undeniably plausible logic, is that Trump is hoping to delay his inevitable legal losses long enough to win the 2024 election (or to succeed in overturning a loss, as he tried to do last time). At that point, he would dismiss the federal cases against him and claim that the New York and Georgia cases must be stayed while he is President (which, in Trump’s mind, surely means forever).
But that conclusion, though reached in good faith by intelligent people, is wrong. Trump’s delays are helping President Joe Biden and the Democratic Party, and even if that were not true, the ultimate consequences of these cases depend entirely on who will take the oath of office for the presidency next January 20.
I have offered the building blocks of this argument in several columns on Dorf on Law (on June 28 and August 4, 2023, as well as just last month on February 29, 2024). Here, I will pull the elements of those arguments together and add a broader observation: Whereas before I believed that this was the proverbial “making lemonade from lemons” situation, in which Democrats should have been resisting delay but making the best of a bad situation as it plays out, I now believe that this is what the Democrats should have been rooting for all along.
To be clear, my argument here does not let the courts off the hook, nor does it make Trump and his team any less mendacious or blameworthy. I am saying this and nothing more: Trump and his people want to delay, and everyone else should criticize him and his enablers but quietly welcome the consequences of those delays.
The Conventional Wisdom Is Once Again Unwise
The “Trump wins through delay” mantra has quickly become so entrenched in the political discussion that one can find it nearly everywhere. As but one of what must surely be thousands of examples, consider these words from Neal Katyal, a former acting US Solicitor General, in an interview last week:
I think there’s no chance the United States Supreme Court is going to side with Trump on ‘absolute immunity,’ but the Court by having such a delayed schedule gave Donald Trump what he wants, which is a very realistic possibility that he can delay the case past the election.… Every time [a judge] holds these hearings, it delays the day of reckoning for Donald Trump—which is all he wants, because if he can stretch this past the election, he can order the Justice Department to stop this prosecution.
I understand why Katyal and nearly everyone else who is paying attention to these cases would say this. My response, however, is simple: Why do we care what Donald Trump wants? He might be right, but he is much more often wrong. He obstructs everything out of lifelong habit, not after devising a context-sensitive strategy. We must instead ask what would be different if Trump were to be denied the delays that he so desperately desires. Would it be better for the country? The answer, as surprising as it is, is emphatically no.
Other Than Schadenfreude, What Good Would It Do to Jail Trump for a Few Months?
Trump could run for office from a prison cell. More realistically, Trump could run for office while the inevitable appeals of any convictions run their course. Even if the two state prosecutors had moved more quickly, and even if Attorney General Merrick Garland had not been so infuriatingly slow in appointing Special Counsel Jack Smith, it is still very likely that Trump would have been able to run for office without the convictions and sentences becoming final before the end of President Biden’s current term in office.
Even if the cases had moved along more quickly, however, I again ask: So what? If Trump were to be sent to federal or state prison for a sentence of, say, ten years, he would serve his full sentence only if he lost this November. Bill Cosby was released from prison after a successful appeal (and he absurdly claimed to be vindicated), and people are rightly angry because he did not face true justice.
Even if Trump had been put in prison yesterday, he would have received special treatment throughout the campaign, and the only thing that would keep him in prison would be not becoming President again. Yet that is also true now, as everyone knows that if Trump does not return to the Oval Office, he will finally face justice.
But a Convicted Trump Would Lose, Right? Right?!
Ah, but the conventional wisdom has an answer for all of this, which is that Trump would most definitely lose if he were a convicted felon. Surely, voters would finally abandon him if he lost in court, would they not?
Trump’s former rivals for the Republican Party’s 2024 presidential nomination apparently did not think so. As I noted last September, “the moderator [at a Republican faux-debate] asked for a show of hands to see which of Trump’s nominal opponents would nonetheless support him if he were the Republican nominee and he had been convicted of any crimes” (emphasis in my original). Everyone on that stage except Chris Christie and Asa Hutchinson raised their hands.
Those, however, are political hacks who were hedging their bets and were especially worried about preserving their political futures when they inevitably lost to Trump. Real voters—or at least enough of them—would not walk into a voting booth and pull the lever for a convicted felon, would they?
Indeed, there is some polling suggesting that this is the case, that is, that some potential Trump voters have said that they would reassess their thinking if he were in fact convicted of crimes. And if the election is as close in swing states as the last two elections were, only a relatively small handful of voters could make the difference.
To be blunt, however, those polls are almost surely unreliable. Even if the respondents are not consciously lying to the pollsters, they know that there is only one “right” answer to the question about voting for a criminal. “Well, I like the guy,” they might say (honestly), “but if he were actually convicted, then I guess I’d have to vote against him.”
But would they? With no one able to see their votes, it would be a simple matter to vote for Trump even after one or more convictions, while protecting one’s public reputation. Polls have become increasingly unreliable, and responses to hypothetical future criminal verdicts might be nothing more than virtue signaling.
More to the point, there is good reason to believe that many supposedly “soft” Trump supporters would not, when push comes to shove, care about any convictions. They could always say that Trump was railroaded, that the juries were “too urban,” and so on. Trump and his cultists, of course, have spent years setting up precisely this political defense. And if there were appeals yet to be handed down, it would be easy enough for such voters to say: “When I said that I wouldn’t vote for him if he were convicted, I meant a final judgment.”
What Exactly Would Convictions Prove, as a Political Matter?
There is, in fact, nothing special about convicting Trump in any of these cases, when it comes to politics. The public knows exactly what happened on January 6 (which is the subject of one federal indictment and the Georgia RICO indictment), and the other two cases (stealing highly sensitive government documents and committing fraud in New York) are hardly salient to low-information voters. Would anyone who was not already appalled by everything that Trump has done be moved by a conviction, especially when Republicans will join Trump in describing the cases variously as “ticky-tack” or nothing more than election interfering “Biden Crime Family”-directed political hit jobs?
Consider the now-familiar arc of Trump’s prior supposed political turning points. Supporters ran for the hills after the Access Hollywood tape was released, but then they returned. They were shocked at Trump’s “very fine people” comments about a neo-Nazi mob, but then they put that event down the memory hole. They were stunned but soon did not care when Trump tried to extort the Ukrainian government to announce a fake inquiry into Joe Biden.
Oh, and within a few weeks after January 6, Republicans started the process of slinking back to Trump’s side.
In short, the internal logic of the “we must convict him before the election” argument does not add up. Again, tiny numbers of votes might determine the outcome of the election, but the idea that Trump would lose even that small number of votes after a conviction at this point seems like wishful thinking.
What If Trump Does Not Lose in Court—or Even if He Does?
None of the analysts decrying Trump’s delays, moreover, seems to have thought about the consequences of a pre-election “win” by Trump. Although it is impossible to imagine that any jury would unanimously acquit him, one or more juries could certainly end up hung. And that would be an enormous win for Trump politically, because he would say—and even his detractors would have to concede—that every American is innocent until proven guilty. Not having been convicted thus would amount to vindication.
In addition, if Trump had gone to trial and been convicted in, say, April of this year, how long would the political half-life of that outcome be? Recalling again the shock-followed-by-relapse response that we have seen over and over again to Trump’s many Houdini moments, “Trump was convicted” would merely become background noise within a matter of days. I am not saying that it should be that way, but all our experience in recent years tells us that it inevitably would turn out that way.
This Does Not Let the Courts Off the Hook
This all adds up to a surprising conclusion, which is that Democrats are going to be in their best possible situation going forward because the trials have been delayed at Trump’s behest. The Trump cases will continue to make news, which means that the alleged crimes will continue to merit discussion. This is much better politically than even a conviction. As I noted above, even if Trump in an alternative universe had gone to jail for some short stint this year, his long-term future would nonetheless be determined by the political system, not the legal system. Again, that is not good, but it is true.
As I suggested at the beginning of this column, one could reach the conclusion that I have laid out here either ex post or ex ante. That is, those of us who oppose Trump need not have thought through all of this in advance to be able to adapt to the reality on the ground as the delays mounted. We can say that we might originally have thought that delays were bad for America, but now we see that we were wrong.
On the other hand, this truly was knowable in advance, and people who understood that would have had a choice to make. They could either say that they do not oppose Trump’s delays, or they could scream bloody murder strategically, goading Trump into believing that he was getting what he wants.
There need be no “day of reckoning” before the election. In that sense, a dishonest prosecution in fact would be just as politically valuable as an honest one, but fortunately there is no evidence that any of these prosecutions lacked the requisite facts and law to move forward.
And as a bonus, all of the people who oppose Trump can now make political hay out of the many delays and other gifts that the courts have given him. Katyal was right to say that the Supreme Court was wrong—I would describe it as completely unprincipled, but I do not wish to put words in Katyal’s mouth—and I hope that people will continue to criticize that court, the US District Court judge in Florida who is slow-walking Trump’s national security case, and any other judges who join in.
After all, these jurists are also listening to the political conventional wisdom, which means that they must also believe that they are helping Trump by abetting his delaying tactics. Whatever one might think about the Republican-appointed supermajority on the US Supreme Court, surely none of those six jurists is channeling my argument here and thus surreptitiously helping President Biden by dragging out these cases.
In short, the courts are still wrong, not only on the merits—for example, no one in their right mind imagines that there is anything substantive to be gained by fully briefing and arguing Trump’s absolute immunity case, where a summary affirmation of the DC Circuit’s unanimous opinion would have been both appropriate and speedy—but in doing things that they think are helping Trump. And they deserve every bit of criticism that is coming their way, and more.
The US’s system of electing the President is creaky, biased, and absurd. Even so, Donald Trump is wildly popular among Republicans, who will stand behind him even when there is overwhelming evidence of his guilt staring them in the face. Justice delayed, the saying goes, is justice denied. Here, speedy justice in a courtroom would not prevent gross injustice in the world, while legal delay sets up the only possible way in which true justice might finally be achieved, in the political arena.
