The Donald in the Dock

donald trump
There’s no point in pretending that any Trump hush-money verdict is going to be a silver bullet. Photo: Peter Foley/POOL/AFP
John Heilemann
May 19, 2024

Ever since The People of the State of New York v. Donald J. Trump got underway on April 15 in Lower Manhattan, you just knew that at some point this first-ever criminal trial of an American ex-president—which started out as a sober legal proceeding but grew increasingly lurid with each passing day—would be overrun by the operatic, often squalid brand of political performance art that has been a hallmark of the Trump era. So I watched and waited and waited and watched until this past Thursday afternoon, when, et voila, the sign we’d arrived at that fateful juncture suddenly appeared: a squadron of pink, penis-shaped balloons festooned with the faces of Trump’s legal foes (Manhattan D.A. Alvin Bragg, Special Counsel Jack Smith, etcetera) swirling above the courthouse.

This airborne pro-Trump agitprop—entitled “Dicks of Hazard” by its creator—wasn’t the first time phallic imagery or intimations loomed over the hush-money case. There was the sublime accident of fate that the surname of the trial’s first key witness happened to be Pecker. There was the prosecution’s assurance that Stormy Daniels’s testimony would abjure “any details of genitalia,” a veiled reference to her famous description of Trump’s member as resembling “the mushroom character in Mario Kart.” (Here I’ll admit my disappointment at being denied a reenactment of the toadstool police lineup that Jimmy Kimmel once conducted with her.) There was Daniels’ attestation that Trump failed to don a prophylactic when they did their thing. 

Then there was the other scene outside the courthouse on Thursday, coinciding with the penile balloon launch but featuring a different set of tools: a press conference staged by a dozen-ish House Freedom Caucus members, led by Matt Gaetz, to parrot Trump’s talking points—that Judge Juan Merchan, the prosecution, and the witnesses are “corrupt”—and thus help their hero circumvent the gag order imposed by Merchan to prevent him from making such pernicious claims himself. Gaetz, as is his wont, went even further, taking to social media to advertise his yen for political violence: “Standing back and standing by, Mr. President,” the feral gentleman from Florida wrote, echoing Trump’s 2020 debate-stage shout-out to the Proud Boys.



By the end of last week, the debased antics at 100 Centre Street—who will soon forget the coterie of G.O.P. veepstakes wannabes parading around in what looked like matching Trump Halloween costumes, minus the requisite orange fright wigs?—together with the winding down of Michael Cohen’s testimony, had convinced even Trump trial obsessives that the hush-money case had reached its sell-by date. Happily, the prosecution and defense both seem to agree. Which means that, unless Trump decides to testify, the final act of this unprecedented courtroom drama is close at hand.

What will happen next is the subject of avid speculation in legal and political circles. Among folks with J.D.s, there’s no consensus regarding the likely verdict: acquittal, conviction, or a hung jury all seem plausible. But among elected officials and political operatives there is certitude in abundance. Team Trump insists that the hush-money case has been a slam dunk for 45, rousing his donors and rallying the MAGA base—and will continue to be no matter the outcome. Team Biden contends the trial has likewise energized its core supporters, while also reminding undecided voters of D.J.T.’s moral rot—an effect that will linger, too, regardless of the verdict. And though polling on the topic is all over the map, varying from news cycle to news cycle, the inconsistencies have simply enabled a degree of cherry-picking rarely seen outside of a Boone’s Farm orchard among strategists deploying data to bolster their povs.

But beneath on-the-record spin and on-background static ginned up by both sides, the best people in the business have a different assessment entirely: that the precipitating events—Donald bedding Stormy in 2006 and then buying her silence in 2016—that eventually landed Trump in the dock are old news by any standard, and for the TikTok generation the functional equivalent of a Paleolithic cave painting; that Trump’s compulsive promiscuity and titanic tawdriness are already fully priced into the stock, making him a lovable horndog to some (not unlike Bill Clinton in his heyday) and a putrid scumbag to others (ditto), but a known quantity to all; and that, therefore, the political impact of the trial, today and down the road, isn’t remotely commensurate with its historic nature.

Having spent much of the duration of the trial outside of the Acela corridor, I’ll say that this take rings blaringly true to me, though I’d put it more bluntly: As far as I can tell, aside from bone-deep partisans and cable-news legal analysts, virtually no one is paying attention to the trial or gives a shit about its outcome. The question, however, is whether that electoral impassivity is well and truly set in stone or could be meaningfully altered by new facts on the ground, the most obvious possibility being a sweeping, unequivocal verdict—especially a multi-count conviction, turning one of the two major party nominees (and a former POTUS, at that) into an actual, factual felon.



Given the jaded, cynical times in which we live, the easy answer here is: Nah. But if there’s one thing I’ve learned from having been in this racket all these years, it’s that unexpected, inconceivable, and just plain weird shit happens all the time when you’re traversing political terra incognita—which is precisely where the election will be headed if the jury comes back and, a la Doonesbury’s verdict on John Mitchell in 1973, declares that Donald J. Trump is, in fact, “Guilty, guilty, guilty!!!


The Rumsfeld Doctrine

Of the four Trump indictments, the one elicited from a New York grand jury by Alvin Bragg was the first to be filed, in April 2023. But once the other three—the federal classified documents case in Florida, in June, and the federal and state election interference cases in the District of Columbia and Georgia, respectively, in August—dropped, Bragg’s indictment came to be seen as the red-headed stepchild of the family: the case no one who pined for legal and political accountability for Trump wanted to be the first to go to trial. 

It’s easy to see why. In the Florida, Georgia, and D.C. indictments, Trump stands accused of outrageous, profound crimes committed as a sitting president (endeavoring to subvert American democracy by staging an auto-coup after losing a free and fair election, including an attack on the Capitol) or on his way out the door (stealing dozens of boxes of classified national security documents from the White House, then lying about it, then obstructing federal efforts to retrieve them). If proven, the charges derived from these accusations are unambiguously disqualifying for elective office at any level. The evidence behind them—from Trump’s recorded vote-begging phone call in Georgia to photos of classified documents stashed in bathrooms at Mar-a-Lago—is compelling. And the cases themselves range from strong to steroidal; legal experts across the ideological spectrum believe that the Florida case, in particular, is open-and-shut. 

Essentially none of the same can be said of the New York case, which, for a start, involves stuff that Trump did when he was still a private citizen. Though the crimes he’s accused of are real enough, they are penny ante by comparison: 34 counts of falsifying business records related to $130,000 paid to Daniels to clam up in 2016—misdemeanor charges, in fact, stretched into felonies by the state’s contention that the falsifying was intended to conceal another crime (violations of federal campaign law). If that last bit strikes you intuitively as slightly dodgy, there’s a mob of legal experts more than happy to explain why you’re spot-on. Indeed, lined up next to the D.C., Florida, and Georgia cases, Bragg’s hush-money prosecution was inferior in every way: more legally tenuous, less politically impactful, and (by a mile) the least historically significant.



And yet… well, you already know what happened next: One by one by one, the non-New York cases got bogged down, tied up, or stuck in the proverbial mud, each trial delayed indefinitely by, in turn, the U.S. Supreme Court’s desire to consider the (flagrantly absurd) question of whether a president might be immune from prosecution for basically any crime he commits in office; Florida Judge Aileen Cannon’s ineffable combination of managerial incompetence and partisan bias; and Fulton County D.A. Fani Willis’s libido and utter lack of judgment.

As a result, come this spring, those counting on the courts to mete out justice to Trump—and, in the process, see him hobbled in his bid for reelection, or, in their technicolor fantasies, cloaked in an orange jumpsuit and frog-marched off to jail—received a painfully ironic reacquaintance with a key element of what was once known as the Rumsfeld Doctrine: “You go to war with the Army you have, not the Army you might want.”

For all its deficiencies, however, the hush-money case turned out to be a reasonably robust fighting force. The state’s triumvirate of high-profile witnesses—Pecker, Daniels, Cohen—delivered solid performances. The most important of them was Cohen; also, the most readily impeachable and temperamentally unreliable. But Cohen mostly kept his cool, and while he was caught out (either for lying or misremembering, who’s to say?), the relentless attacks on his character and credibility had been pre-butted by the voluminous paper trail at the heart of the case. At the same time, the defense team advanced no discernible counter-narrative to explain the events in question, and even clung to what must be among the most patently ludicrous claims ever put forward in a court of law: that Trump, a legendary skinflint and proven welsher, paid $130,000 for the silence of a porn star with whom he didn’t have sex. 

Even so, a substantial possibility remains that Trump either winds up being acquitted, or, more likely, is released by a hung jury. In their respective summations this week, the defense will likely maintain that Cohen is an “indispensable witness” to the state’s case: If the jury has reasonable doubts about him and his veracity, that means, ipso facto, it has reasonable doubts about the whole case. And, let’s be honest here, Cohen—a serial, admitted, and previously convicted and incarcerated liar—is a walking, talking doubt-inducement machine. (The prosecution will likely counter that Cohen is by no means indispensable but rather icing on the cake, but that will simply raise the question of why a superfluous witness testified at all.) Between the Cohen conundrum and the vulnerabilities of Bragg’s bank-shot legal maneuver to transform misdemeanors into felonies, it’s not hard at all to imagine one or two holdout jurors refusing to convict.



For Trump, the politics of an acquittal or a hung jury are identical. Beyond his loud, whiny, incessant claims of victimhood and persecution—witch hunt!—the paradoxical core premise of the Trump campaign is strength, which by extension serves as its central point of contrast with Biden. Crooked/Sleepy Joe is frail and feeble, incompetent and incontinent, addled by dementia. Whereas Trump is powerful and unstoppable, indomitable and invulnerable, a fucking beast—and what better proof is there of that than the way he fought back and beat the corrupt legal system in Gotham City, where they stacked the deck, rigged the system, came after him with everything they had… including a porn star he’d barely met and who definitely never spanked him… and still couldn’t take down The Donald. The script here writes itself.

If Trump is convicted, of course, that script will require revision—but a lot less than you might think. Whether the guilty verdict that arrives in this scenario is on one count, 34, or any number in between, Trump’s lawyers will instantly and automatically appeal, a process that will almost certainly put the case in limbo (along with those orange-jumpsuit fantasies) past Election Day. In the meantime, Trump will roam free on the campaign trail as if the trial never happened, except that the witch hunt stuff will be turned up to an even more deafening volume.


The Trial Endgame

That, at least, will be Team Trump’s plan for dealing with the stone-cold fact that, appeal or no, its standard-bearer is (at last) officially a felon. But Team Biden will have a plan of its own, which is currently and actively under construction in the war rooms of Wilmington, Delaware. The central strategic objective of any unpopular incumbent president’s reelection campaign—and unpopular is a kind way of describing Biden’s standing—is to turn the contest from a pure referendum on that president’s performance into a binary choice between two alternatives.

Creating, developing, and driving points of contrast with the Former Guy that are as bright, garish, and inescapable as Team Trump’s strong/weak framing of the race is job one for Team Biden. But a conviction in the hush-money case will provide them with a new one: Biden is a good, upstanding citizen who venerates and staunchly upholds the rule of law (and oh, by the way, have you met Jill, his wife of nearly 50 years?); Trump is a convicted felon, a criminal, a crook who broke the law to cover up an affair with a porn star (who, according to her sworn testimony, he told that she reminded him of his daughter … eww).

It’s true that, besides the felonious nature of Trump’s behavior, there’s nothing new about the story of his entanglement with Daniels or the moral malodorousness it reflects. But another challenge facing Team Biden in the months between now and November 5 is the chronic amnesia that afflicts our culture, whereby even deeply traumatic national events (such as the violence and upheaval on January 6) fade quickly from the collective memory. Reminding voters of what the chaos, ineptitude, and outright lunacy of the Trump administration looked, sounded, and felt like is a task on which Wilmington is already hard at work. But equally important is reminding voters who Trump is—and that cause would surely be aided by a guilty verdict in the New York case.

Now, having said all that, there’s no point in pretending that any Trump hush-money verdict is going to be a silver bullet. Even on the most generous assumptions, the overall, net-net electoral impact of a conviction would be modest and on the margins. But here’s the thing: This is going to be a really close election, and really close elections are won or lost on the margins. No doubt, a guilty verdict in one of the non-New York cases would have packed a bigger political punch. But, like it or not, none of those trials, it says here, are gonna happen before November—whereas the New York case could be done and dusted by the summer solstice.

Is it everything anyone could have hoped for from our justice system? Hell no. But that line from Don Rumsfeld—whose way with an aphorism can’t be denied, despite his other shortcomings—is worth repeating and just slightly rephrasing to make it more apt for politics: When the game is on, the only chance you have of winning is to play the cards you’re dealt.

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