The Trump trial date is a big mistake
I intended to write a normal horse-race column this week, about what we can glean from the polling that came out after the first Republican debate. The emphasis was going to be on the resilience of Ron DeSantis, the success of Nikki Haley, the modest perils for Donald Trump in not showing up for these affairs — and then the larger problem of how DeSantis or Haley or anyone else might unite the anti-Trump vote instead of just repeating the fragmentation of 2016.
But is anything we could learn from one Republican debate more significant than the news that the most important legal case against Trump, his federal trial for alleged election-related crimes, will begin the day before Super Tuesday? Probably not. So let’s save DeSantis and Haley for another day and talk about the significance of a front-runner’s trial running through the heart of a primary campaign.
From any theory of the law’s relationship to democratic deliberation, this seems like an extremely suboptimal convergence. If you take the judicial process seriously — as an exercise in fact finding and adversarial argument, with the presumption of innocence at the outset yielding to a legitimate verdict at the end — then clearly under ideal circumstances the trial of a major presidential contender would be completed before voters begin passing judgments of their own. Under less optimal circumstances, a verdict would be rendered before most of the votes are cast, instilling confidence that a majority of the electorate shared the same knowledge about the law’s decision.
To its credit, that’s what the prosecution asked for: a January start date, with the trial potentially wrapping up around the end of the first phase of the campaign. But instead we’re headed for a world where the trial and the campaign are fully intertwined, with each primary associated with a different snapshot of the case’s progress — some votes cast pretrial, some after the opening statements, some with the prosecution’s arguments as a backdrop and some following the defense’s rebuttal.
This means in turn that an underlying problem for these trials as an attempted vindication of the rule of the law — the fact that everyone watching can see that the law’s decisions are provisional and the final arbiter of Trump’s fate is the voting public — will be highlighted over and over again throughout the judicial process itself. The Republican primary electorate will be a kind of shadow jury, offering its reactions in real time, constantly raising or lowering the odds that the defendant can reverse a
guilty verdict by the simple expedient of becoming the next United States president.
The shrugging response from many liberals is that there’s simply no alternative here, that Trump committed so many potential crimes that the pileup of cases requires at least one, and possibly several, to go to trial during the primary campaign.
But only one of the four prosecutions, the classified documents case, involves alleged crimes committed close to the 2024 election. In every other instance there’s been a winding, multiyear road to prosecution that could have been plausibly expedited so that Trump faced a jury by 2023.
The pileup isn’t deliberate; New York and Georgia prosecutors didn’t get together with Merrick Garland and Jack Smith and plan things to end this way, and some of the federal delay arguably reflected a reluctance to pursue a case. But there is still a recurring pattern with these anti-Trump, anti-populist efforts, which so often seem to converge on stratagems and choices that further undermine confidence in officially neutral institutions.
These choices are often defended with the suggestion that any criticism is just a bad-faith attempt to let Trump or his voters off the hook. So in that vein it should
be stressed, not for the first time in this column, that Trump’s voters are responsible for his continued popularity, that he might well be headed to renomination without the pileup of prosecutions and that prosecutors aren’t forcing GOP voters to do anything they don’t seem inclined to do already.
But the pileup still seems like a boon to his renomination effort. Yes, there’s always “the possibility that Trump collapses under the weight of his legal challenges,” as my New York Times colleague Nate Cohn puts it. But we have months of polling in the shadow of these prosecutions, and it strongly suggests that along with the core Trump bloc (30% to 40% of the Republican electorate, let’s say) that will vote for him no matter what, there’s another bloc that’s open to alternatives but rallies to him when he’s perceived to be liberalism’s major target, in much the same spirit that liberals and feminists once rallied to an accused sexual predator named Bill Clinton when he was the target of the religious right.
To beat Trump in the primaries, challengers would need part of that bloc to resist the rallying impulse and swing their way instead. So timing Trump’s prosecution but not the final outcome of the trial
to some of the most important primaries seems more likely to cement his nomination than to finally make his poll numbers collapse.
A conviction might be a different matter. There may be Republican voters who regard these prosecutions as theater designed to keep Trump from the nomination and therefore expect the legal cases to fall apart when his lawyers make their defense. A Reuters/Ipsos poll a few weeks ago found that 45% of the GOP electorate said they wouldn’t vote for Trump if he was convicted of a felony, compared with 35% (that Trumpian core again) who said they would and that more than half said they wouldn’t support him in the fall campaign if he was imprisoned.
I do not believe the latter number, but at the very least the poll suggests that there is still enough faith in the legal system for an actual conviction to have a different effect on the Republican primary than the prosecutions have thus far.
But on the current timeline, a conviction before the primary is decided is exactly what we aren’t going to get.