Get ready to rumble

Donald Trump's criminal convictions will only further empower him politically, and Democrats share the blame

Last week, Donald Trump became the first former president ever convicted of a criminal offense. While the 34 felonies of which he was convicted were based on entirely legitimate grounds, his supporters are right that they have already been politicized. Figures ranging from Biden and Jamaal Bowman to Trump himself have raised funds using the verdicts as a pretext.

All of them have played into the narrative that the right wing has opportunistically constructed. At stake is not only the 2024 presidential election, but also the independence of the judiciary. Ultimately, it is the future of our Republic (such that it is) at stake. But neither of the corporate political parties can plausibly claim to defend it.

Prosecuting Trump for falsifying business records in order to swing the 2016 election—in an effort to cover up payments to silence a porn star with whom he had an extramarital affair—is more or less the equivalent of busting Al Capone for tax evasion.

Trump’s prosecution was entirely legitimate within its four corners, but it (like the impeachment charades that Pelosi performatively supported in Trump’s first term, after years of stonewalling the process before finally being goaded into it) excluded Trump’s most serious crimes.

Meanwhile, the litany of crimes related to bipartisan corruption in Washington continue unchallenged.

Damned if you do, damned if you don’t

The judiciary is on trial, and will appear biased regardless of the outcome of the forthcoming sentencing process. Judge Merchan should respond harshly, if only to compel respect for the judicial process and legal system that Trump has used to his benefit throughout his career, yet remarkably managed to politicize in his seemingly weakest public moment.

On the one hand, a sentence limited to probation, or fines, will appear laughably lenient. How many people can get convicted of 34 felonies, yet walk away without a jail sentence? The millions of people of color imprisoned for less severe offenses might reasonably find lenience disturbing.

Yet, on the other hand, even jail won’t stop Trump’s campaign to return to the White House. His followers already perceive his prosecution as politicized—even though Biden had no role in it, and Trump was convicted in the State of New York through a legal process not subject to a president’s arbitrary ability to pardon his political cronies & himself. 

Casting stones from a glass house

Observers have widely overlooked that Democrats also harbor criminals in their midst. I was arrested in the Senate 2015 for asking one of them a question after a congressional hearing, and I endured an Islamophobic character assassination in 2020 that ended my career in retaliation for challenging another one in an election.

Americans know that everyone in Washington—including Democrats—are essentially con artists. Many have laughed all the way to the bank for decades while ducking public responsibilities, violating any number of principles that are illegal for the rest of us (like insider trading, for instance, or lying to Congress) along the way.

The corruption observed by Trump’s supporters is outrageously bipartisan, which is entirely the fault of Democrats who have ignored the law whenever convenient to them, their corrupt leaders, and their military industrial patrons.

While Republicans are wrong that Trump’s prosecution was driven by a political calculus among elected Democrats, they are inescapably right that it reflects selective prosecution. Trump was, for better or worse, put on public trial for acts that pale relative to the unrepentant crimes shared by Democrats.

Can anyone seriously claim that paying hush money to a porn star and lying about it (which was the essence of Trump’s crimes) is worse than facilitating a genocide (as Biden continues to do), or murdering U.S. citizens and their children based on their speech (as Obama did)?

Kicking the third leg out from underneath the stool

The separation of powers between the executive, legislative, and judicial branches is the core principle that enabled what some have described as “democracy in America.” While the judiciary often escapes the attention of voters and journalists focused on the political branches, it is no less crucial to the functioning of our Republic.

I’ve been working to defend judicial independence since 2005, when I joined the national staff of the American Constitution Society for Law & Policy not long after graduating from Stanford Law School. For most of that time, Democrats could not be bothered to care about the right wing takeover of the federal courts. When Obama had the chance to nominate Justices of the Supreme Court, he passed on the opportunity to appoint jurisprudential visionaries, instead settling for appointments driven by (political) diversity considerations.

To the extent Democrats remained asleep at the switch until the Trump years, the Dobbs decision shocked them out of a slumber. Unfortunately, concerns about judicial independence, and ethics in exile, may have come too late.

Trump’s repeated and continuing attacks on the judiciary are indeed outrageous, and threaten the rule of law. Like his theatrical stance opposing the corruption and abuses of intelligence agencies (which he opposes only because he has perceived them as political threats, not because he has any sincere commitment to shrinking their powers), he’s like a stopped clock that is right twice a day.

Our judiciary is, in fact, hopelessly corrupt, starting from the very top. Justice Thomas has taken money under the table from billionaires while absurdly disclaiming any impropriety. Justice Alito has been caught flying flags announcing his solidarity with the January 6 insurrection. Both of them—in addition to several other Justices—lied to Congress during their respective confirmation hearings.

Their unapologetic ethical violations, as well as the Court’s relentless assault on fundamental rights (including reproductive freedom, voting rights, and more) reflect crises that no one in Washington seems either willing or poised to address.

Paid subscribers can access a further (personal, but poignant and bizarre) reflection on a coincidence relating to the underlying set of events that led to Trump’s criminal convictions and my response to my character assassination in 2020 at the hands of his enablers in the Democratic Party.