Electability’s Last Stand

A lightbulb went off in my head when news broke that Donald Trump will stand trial in Washington on March 4, 2024 for crimes related to his post-election “Stop the Steal” campaign. “That’s the day before Super Tuesday,” I chirped in the Dispatch Slack channel.

To which a colleague replied, “He’ll have it all locked up by then, Nick. Don’t worry.”

Well, yes. Probably.

One could argue that March 4 is a fortuitous bit of scheduling for the defendant-in-chief, relatively speaking. It’s not ideal—for obvious reasons, he’d prefer to have each of his trials pushed off until after the election—but it beats having to face a jury before any ballots are cast. By March 4, the hugely influential first primaries will have already taken place and early voting in Super Tuesday races will be underway. All those votes will be banked before anything can happen in court that might change Republican voters’ minds.

Not that there’s any reason to believe their minds are capable of being changed. Given how the right has rallied around him since his first indictment in March, Trump might benefit from having the early primaries running concurrently with the countdown to his trial. New York Times analyst Nate Cohn noted on Monday that if the proceedings begin on March 4 as scheduled and last four to six weeks, “around two-thirds of the delegates to the Republican convention will be awarded during the trial.”

The “rally ‘round the accused felon” effect could deliver a bigger landslide than anyone expects. And if any Republican voters are destined to get cold feet about nominating a convicted felon as opposed to an accused one, Trump’s conviction will almost certainly come too late to halt his march to clinching the nomination.

There’s good reason for despair. There always is.

But you know me—a hopeless optimist, forever looking on the bright side and finding best-case scenarios where others see only doom and gloom.

So today, let’s try to talk ourselves into believing that March 4 actually isn’t that great a date for Trump to begin his legal odyssey. As we do so, let’s bear in mind that at least one person out there agrees.

That’s the sound of a man who knows that a guilty verdict before Election Day will greatly complicate his chances of becoming president—and who fears that Republican voters being forced to reckon with that reality by the trial timetable might complicate his path to the nomination.

I have a pet theory that Ron DeSantis is doing better with primary voters than the polls would have us believe.

Not wildly better. Any way you slice it, this isn’t a close race. But my hunch is that a segment of the non-cultist wing of the GOP feels obliged to express solidarity with Trump during his legal ordeal by telling pollsters that he’s their choice as nominee while privately worrying how he might fare in a general election.

Publicly, they’re all-in for Trump. Once they’re in the voting booth, hmmm.

I stress again that I suspect this cohort is smallish (if not nonexistent!) for now. But I wonder how much it might grow as Trump’s criminal jeopardy shifts from hypothetical, little more than an applause line in his stump speech at rallies, to real. They’re really going to try him. And they’re really going to do it before Election Day. (Maybe.) And they really might convict him.

How many Republican voters who like Trump but remain open to nominating someone else have shrugged off his legal troubles thus far in the belief that he’ll inevitably find a way to delay the proceedings or wriggle free of liability, as he always does? What happens when they’re forced to reckon meaningfully with the possibility that their ticket will be led by a convicted, not merely accused, criminal?

“Nothing. They’ll talk themselves into nominating Trump anyway,” a pessimist might say. “Even today’s non-cultist right-wingers are counterculture droogs driven by spite rather than rational self-interest.” Good thing I’m not a pessimist!

A less cynical skeptic might point to the calendar instead. “Sure, fine, a conviction might hurt him. But you said yourself that most of the delegates in the primary will have been awarded by the time we get a verdict. If the goal is to deny him the nomination, the March 4 trial date is too late.”

Is it, though? Few people have lower regard for Republican voters at this point than I do, but even I think they’re capable of factoring momentous near-future news developments into their political calculations. When Iowa holds its caucus on January 15 next year, Trump’s trial in Washington will be just seven weeks away. There will be endless chatter about it in the media. The prospect of caucusing for someone who might be a convicted felon before spring is out will be thick in voters’ minds.

Their attention will be concentrated on this subject in a way it never was before.

Trump’s remaining Republican opponents, desperate for a last-second shift in the polls, might not be able to resist capitalizing. They haven’t yet found the nerve to use his indictments against him, but they’re getting closer, dancing around the subject. At last week’s debate, Nikki Haley called Trump “the most disliked politician in America.” When Ron DeSantis was asked recently in Iowa why an undecided voter should prefer him to the frontrunner, the first words out of his mouth were, “I think I’m much more likely to actually get elected, which is very important.”

No one would wager on either of them finding their courage and daring to argue that the charges against Trump say more about his corruption than they do about Jack Smith’s. But if there’s some wobbling in the polls as Iowa’s caucus—and the trial—draw near, DeSantis and the rest might take heart from it and finally go for the throat. It’ll be the last stand for the electability case against Trump that they should have pressed hard from the start, but haven’t.

How that might move opinion among a wavering “pro-Trump but not cultist about it” bloc is anyone’s guess.

There’s also a chance of convention chaos if the jury in Washington finds him guilty before he locks up the nomination. A small chance, I stress: If GOP delegates led a floor revolt against him in the belief that he couldn’t win the general election, it would break the party. Trump diehards would never forgive them for using the “deep state’s” crooked legal ploy as a pretext to deprive their man of what he’d rightfully won. But sticking with him as nominee post-conviction might break the party as well. Remember this Reuters poll from a few weeks ago?

The two-day Reuters/Ipsos poll, which closed before Trump’s late-afternoon court appearance, asked respondents if they would vote for Trump for president next year if he were “convicted of a felony crime by a jury.” Among Republicans, 45% said they would not vote for him, more than the 35% who said they would. The rest said they didn’t know.

Asked if they would vote for Trump if he were “currently serving time in prison,” 52% of Republicans said they would not, compared to 28% who said they would.

Roughly half of Republicans are squeamish about voting for an honest-to-God convict. Granted, that number will come way down once right-wing propagandists go to work (“we can’t trust a verdict from a liberal D.C. jury!”) but there’s a reason Trump is desperate to delay these trials until after the election. It’s easier to ask voters to take a chance on someone who’s been accused of a crime than on someone who’s confirmed to have committed one.

A pre-election conviction will also make Trump’s grand scheme to avoid jail time more difficult—even if he ends up defeating Biden.

His scheme calls for him first to use his new power as chief executive to shut down the two federal prosecutions against him, one of which is the Washington case involving “Stop the Steal.” Then he’ll sue to suspend the state prosecutions against him in New York and Georgia, arguing that his criminal jeopardy there is interfering with his ability to do the people’s business as president. If everything broke his way, he’d be off scot-free at the federal level and wouldn’t need to worry about the state level until 2029 at the earliest.

But everything hasn’t broken his way, assuming the March 4 trial date in Washington sticks. He might end up convicted in that matter long before he gets to order the Justice Department to stand down. If so, his only option to evade accountability upon taking office in 2025 would be to pardon himself, a move that might or might not be constitutional, and which as an ethical matter would stink to high heaven. As repulsive as it would be for a president to grant himself clemency for a crime he’s been accused of, imagine him granting himself clemency after a guilty verdict that’s already on the books.

Are we really going to hand this felon a get-out-of-jail-free card? The absurdity of that question will dominate the campaign more thoroughly than chatter about mere indictments would have, particularly once Trump inevitably ramps up barely veiled threats of violence following his conviction. The counterargument, Joe Biden is so very, very old, will seem limp by comparison. And maybe—maybe?!—Republican primary voters will come to realize it during the primary, while there’s still time for them to do something about it.

Let’s hope, as it would be far better for America for this rotten party to tear itself apart over Trump’s fitness than to force the matter onto the national electorate in a general election. For once, the corrupt American right should clean up its own mess. But what is the lesson of the past eight years if not that they’ll refuse every opportunity to do so and then screech bitterly at anyone who tries to do it for them?

So, you see, March 4, 2024, isn’t the worst day for the gears of justice to start turning, politically speaking.

But … it’s not the best day either.

The fact that the trial in Washington will begin on the eve of Super Tuesday (literally!) will only deepen suspicions that the criminal cases against Trump are driven by politics, and those suspicions are already plenty deep. When CBS asked Americans earlier this month what they think the indictments are about, 59 percent said “trying to stop Trump’s campaign.” That was the largest share among the four options offered, slightly outpolling “upholding the rule of law.”

That’s not to say that voters think the charges against him are bogus. Majorities in several polls believe they’re warranted. But it is to say that Trump and his flunkies crying “election interference!” (about a criminal case stemming from their own attempts to interfere with the last election, please note) is potentially potent spin. Having his first trial land right before the biggest day on the primary election calendar makes it that much more potent.

Another caveat: As much as being convicted before Election Day might hurt Trump’s chances at reelection, being acquitted might help them—and acquittal is quite possible. Of the four indictments against him, in fact, my colleague Sarah Isgur recently ranked the federal “Stop the Steal” case scheduled for March 4 as the weakest, save for Alvin Bragg’s eye-rolling Stormygate prosecution in Manhattan.

If Trump skates on those charges, he’ll head into the general election with political momentum. He’ll have beaten the “deep state” at its own game again—”TOTAL EXONERATION!” as the man himself might say. Undecided voters might start to view the charges pending against him in the other three cases with new skepticism, wondering if he’ll end up walking away in those matters too. His “witch hunt” accusations against the Biden administration could begin to bite.

Or, if you want to get really dark, imagine that he’s found guilty in the “Stop the Steal” case, loses the election, then gets the verdict overturned. (“This case has a high chance of securing a conviction, but I think it is the weakest on appeal,” Sarah said of it.) Republican voters will cry foul for millennia that their man was impugned and deprived of the presidency by a dubious conviction that couldn’t stick.

For anti-Trump forces, it would be best politically if the strongest case against him was the first to be tried. That would be Jack Smith’s other federal prosecution, the one for concealing classified documents; Smith appears to have Trump dead to rights there, leaving Republicans with few options on spinning a guilty verdict if one were handed down early in the campaign.

But the documents case isn’t going first. It’s not going second. It’s not even going third. Or fourth!

According to the current timetable, of the five civil or criminal trials with tentative trial dates that Trump faces in the next nine months, the documents matter is dead last in the queue. It’s set to begin on May 20, 2024; before that comes the New York attorney general’s civil fraud suit against Trump and his company in October, then a second defamation suit filed by E. Jean Carroll in January, then the “Stop the Steal” criminal trial on March 4, then the Stormygate trial in Manhattan on March 25. Then comes the documents extravaganza.

If we’re four acquittals deep by the time Smith gets to present the strongest case against Trump, how many voters will care about the latter? Even if he’s convicted, how many will dismiss that verdict in the false belief that Trump’s corrupt enemies just kept on filing suits until they won one after he beat them on all the others?

That’s a grim scenario. But …

… there’s a sixth case hanging out there, the recent indictment in Georgia for racketeering related to trying to overturn Biden’s 2020 victory. It’s relatively strong on the merits, in Sarah’s assessment. (“The odds of a conviction here are high …”) And although it doesn’t have a trial date yet, there’s a chance it’ll end up cutting the line and becoming the first criminal case against Trump to be tried.

And first by a wide margin, too. Fulton County prosecutor Fani Willis initially asked for a trial date of March 4, 2024, the same as the Washington “Stop the Steal” matter, but last week she moved up her request to October 23, 2023, for all 19 defendants. The court has already granted that motion with respect to former Trump attorney Kenneth Chesebro.

We’re awaiting word on when Trump himself will face the music but “the sheer optics and an aggressive state justice system could have the former president standing trial this fall, before a single vote is cast—and potentially on TV,” per a report by The Messenger published yesterday. If that happens, the Republican frontrunner and/or his accomplices might be on trial—or convicted of a crime already—when Iowans go to caucus.

And if he is convicted, it won’t be for an “unimportant” crime, which is how I suspect many Republicans would regard a conviction in the documents case. A guilty verdict in Georgia would speak directly to his conduct after the 2020 election, the absolute core of why he’s unfit to be president again. It would amount to a compelling argument as to why he’s unlikely to be elected president again.

Would that be enough to make Iowa’s caucusgoers think twice? Republicans being Republicans, probably not. But if you’re miffed that Trump’s challengers haven’t argued forcefully enough that he’s unelectable, a pre-Iowa criminal conviction in Georgia would make that point more eloquently than any of them could have. It would be a two-by-four upside the head of Republican voters alerting them that they’re about to nominate the most baggage-heavy presidential candidate in American political history.
All of that being so, if I were a lawyer for Trump, my strategy in Georgia would be to delay, delay, and delay some more, arguing that we’ll need years to prepare a defense as complicated as this one. Fortunately for the defendant-in-chief, he can afford to hire lawyers much smarter than me. Unfortunately for him, he hasn’t.