Leaning Into Lawfare

“Biden camp decides not to take the bait on Trump’s stormy trial,” Politico declared in a story published in mid-April about the president’s decision to “stay the hell out of the way” of his opponent’s criminal proceeding in Lower Manhattan.

“The president believes in the norms,” one White House official told the paper at the time. “It only takes one utterance from Joe Biden for the weaponization of government bullsh-t to become more of a reality.”

Six weeks later, it would appear that the president no longer believes in “the norms.”

Here was the scene on Tuesday outside the courthouse where Donald Trump is being tried, highlighted on Team Biden’s own social media account:

Michael Tyler, the campaign’s communications director, split hairs a day later by stressing that the campaign hasn’t spoken about the substance of the trial, but that’s not true. Appearing at the same press conference as a Biden surrogate, Robert De Niro went as far as to say of Trump, “The fact is whether he’s acquitted, whether it’s hung jury, he is guilty—and we all know it.”

Even if it were true, the decision to hold a presser outside the courthouse is … curious. The Biden campaign won’t talk about the proceedings, but they will talk near the proceedings?

We might dismiss it as a lapse in judgment if not for the fact that it’s not the only “lapse” lately.

In the video he released two weeks ago challenging his opponent to debate, Biden snarked that he hears Trump is “free on Wednesdays,” a reference to the fact that the Manhattan trial hasn’t been in session on that day of the week. His campaign then turned around and monetized the jab by selling “Free on Wednesdays” T-shirts. With much of the country suspicious about the propriety of trying the case in an election year, the president treating it as an opportunity for political fundraising feels not so norms-y.

That’s not all. Plans are afoot for Biden to speak about the trial once a verdict is reached—and he intends to do so at the White House itself, not at a campaign event. His aides believe choosing that location will “show that his statement isn’t political,” but I think it’s likely to do the opposite. Using the presidential mansion as a backdrop for Biden’s statement will lend it an air of authority that it doesn’t necessarily deserve. Why would the president, in his official capacity, weigh in on a jury verdict in New York state court in the first place?

Assuming Trump is convicted, “Biden’s team will then argue that the result shows Trump is ill-suited for office and that it demonstrates the extremes to which the former president would go to win again,” per Politico. There’s even chatter about referring to him as “Convicted Felon Donald Trump” in online postings going forward.

It was, is, and hopefully always will be norms-y in the abstract for a political candidate to highlight his opponent’s criminal record. We shouldn’t want convicts serving in positions of public trust. But this particular criminal trial has always stunk of politics, from the fact that it was held nearly a decade after the events that inspired it to the questionable legal theory on which it’s based to the dubious motives of the lead prosecutor.

Trump has spent more than a year screeching that the criminal indictments against him are a form of “lawfare” by Democrats keen to hobble his presidential campaign. Their nascent efforts to weaponize the Manhattan trial suggest Team Biden has begun to lean into the accusation.

Why is this bad? Let us count the ways.

For starters, it makes the president and his campaign look desperate. And no wonder: They are desperate.

Biden has trailed Trump for months in national and battleground polling. A conviction in this trial is one of two developments before Election Day that might plausibly disrupt that trend. (The other is the presidential debates.) But as we saw yesterday, Biden’s campaign is having a devil of a time turning the race into a referendum on his opponent’s fitness for office rather than his own. They’re running out of time and ideas so they’re preparing to promote the heck out of a guilty verdict, should one arrive.

“Norms” are a fine thing when you’re ahead by 5 points and on a glide path to election, it seems. But when you’re 3 points down in the swing states and flirting with a sub-40 job approval, they’re negotiable.

In that sense, the president’s electoral trajectory resembles that of his old boss. Like Barack Obama, Biden won his first term by selling an idealistic alternative to a Republican administration whom many voters believed was morally compromised. And like Barack Obama, he’s hoping to win a second term by running a cutthroat “just win, baby” campaign against his opponent.

Not so norms-y. In hindsight, one might reasonably suspect that the civic idealism of his first campaign was a matter of strategy, not belief.

Another reason leaning into lawfare is a bad idea is that it seems unlikely to do Biden much good and might plausibly do him real harm.

According to a Quinnipiac poll published last week, 70 percent of Americans are already following news of Trump’s trial “very closely” or “somewhat closely.” That number will skyrocket when there’s a verdict; it’ll be on the front page of every newspaper in the country, the top story on every cable news outlet, and the topic du jour on every social media platform. If he’s convicted, the question of his fitness for office will be front and center in the campaign without Team Biden needing to lift a finger.

So what will be achieved by having the president himself address the matter publicly, except to seemingly confirm Trump’s suspicions that the trial was all about giving Democrats a talking point in the campaign?

Nothing Biden says is likely to make swing voters more inclined to hold a guilty verdict against Trump. In Quinnipiac’s survey, just 6 percent of those who currently prefer the Republican for president said they’d be “less likely” to support him if he’s convicted. And “less likely” doesn’t tell us much: If you’re 100 percent certain to vote for Trump if he’s acquitted and 99 percent certain to do so if he isn’t, you’re technically “less likely” to support him even though your vote is in the bag.

As with so many of Trump’s moral failings, the outcome of the trial simply might not hurt him:

But it could hurt Biden. The spectacle of the president trying to capitalize politically on a conviction might convince some persuadable voters that Trump was right to view the trial as dirty pool manufactured by Democrats. If that were to happen, it’d be a triple whammy for the left. Voters might be more inclined to dismiss the verdict as illegitimate; they might feel a modicum of sympathy for Trump, God help us; and they might view the gap between him and Biden in terms of their respect for “norms” as less meaningful than it is.

The guy who attempted a coup the last time he was in office and has spent much of his time ever since pondering how to make the next coup plot more successful should be an easy answer to the question, “Who’s more likely to make America into a banana republic?” The more eagerly Biden embraces political lawfare, the easier it’ll be for voters who are motivated to do so to call the issue a wash.

Because of that, the president’s campaign will probably get stuck trying to lean into lawfare a little but somehow not too much, thereby doing just enough to give his critics ammunition without doing enough to win anyone over. Tuesday’s event outside the courthouse was a nice example: Having Robert De Niro and some of the January 6 cops speak on Biden’s behalf in lieu of prominent politicians was obviously the campaign’s attempt to politicize the trial a little without politicizing it too much.

And like every other dopey “half-pregnant” Biden gesture, it’ll alienate more people than it attracts. You can be the norms candidate or you can take off the gloves; you can’t do both.

Here’s another question. What if leaning into lawfare ends up working for Biden?

Imagine he went scorched-earth over the trial, ran hard against “convicted felon Donald Trump,” and won a squeaker in the Rust Belt states to secure a second term. How well would Trump voters handle that outcome?

“As well as they handled the outcome in 2020!” you might say. “If Trump loses, they’ll call the election unfair no matter what.”

Right. But it matters how plausible that accusation is, no?

One of my editors reminded me today how Bernie Sanders supporters would respond to questions about his electability during the 2020 Democratic presidential primary. Republicans are going to call our nominee a socialist anyway, they’d say, so why not nominate an actual socialist? But the answer to that was simple: “If Republicans are going to call our nominee a socialist, it’s important that we don’t prove them right.”

The same could be said of Republicans’ “lawfare” accusations against Democrats. Trump will scream about “lawfare” whether or not Joe Biden mentions his trial so why shouldn’t Biden mention it? Why indulge the complaints of a political movement that operates remorselessly in bad faith, on the one hand fretting about the civic damage Trump’s prosecutions have caused while on the other mobilizing to reelect a coup-plotter who wants “absolute immunity” for his conduct in his office?

The answer is the same as it was for Sanders. Most Americans know Trump is a cretin: No less than 75 percent told Quinnipiac they believe he did something that was at least unethical in the Stormy Daniels matter. But when they see his electoral opponent, the most powerful man in the world, rhetorically spiking the football after a conviction in Manhattan, the benefit of the doubt they’ve given to law enforcement’s good faith in prosecuting said cretin will weaken.

If Republicans are going to call the criminal charges against Trump a political ploy, it’s important that we don’t prove them right. Faith in the leadership of this country, especially among the youngest adults, is low enough as it is. A second Biden term will be even more dismal than expected if a huge share of the population—not just MAGA—believes that he owes his victory to effective exploitation of Trump’s election-year criminal conviction. Especially if that conviction doesn’t stick.

Our friend David French recently envisioned a political nightmare in which Trump is convicted in Manhattan, Biden wins narrowly in November, and then the conviction is reversed on appeal afterward. The degree to which that turn of events would shake the faith of Trump voters in the fairness of the system is hard to overstate, but one thing that could plausibly make it more destabilizing than it otherwise might be would be if Biden had placed the fact of that conviction at the heart of his victorious campaign.

The punchline is that he doesn’t need to do so in order to make the case that his opponent is a menace to the rule of the law. He has a coup plot, two impeachments, and a blockbuster civil verdict on a claim of sexual abuse to rely on instead. A conviction in the Manhattan trial adds little to the brief against Trump and presidential commentary on the subject will add even less.

Bad civically, bad strategically. So why do it?

There are two “good” arguments for leaning into lawfare. One is that Biden has no choice. Once he agreed to debate Trump, Biden assured that he would eventually have to say something about it. Trump will accuse him onstage next month of having masterminded the four criminal prosecutions he’s facing for political advantage. The president will need to respond.

But some responses are better than others. A good response would be if Biden could truthfully say, “I didn’t order those prosecutions. I haven’t made an issue of them. I haven’t even commented on them. You’re the one who keeps bringing them up!” A less good response would be, “Go to JoeBiden.com right now and purchase your very own ‘Free on Wednesdays’ T-shirt.”

The other “good” argument is that it’s endlessly aggravating to have to entertain the pretense that Donald Trump’s authoritarian movement cares about liberal norms and fair play.

We’ve considered the roots of that aggravation before. It’s not just the hypocrisy of a street fighter sucker-punching everyone in sight and then getting indignant when he’s socked in the face. It’s the fact that Trump’s depravity and the right’s boundless tolerance for it created the political dilemma of trying a presidential nominee in the first place. Instead of feeling contrite about that, they’re aggressively exploiting the justice system’s struggles to cope with the ethical problems presented by the situation to try to weaken faith in that system.

If Trump wins, important officers in federal law enforcement will be purged and replaced by fascist sycophants. When you frame the stakes that way, you can understand why Democrats are keen to use any political cudgel within reach to keep him out of power, including a conviction in Manhattan.

But that brings us to the same place we arrived at the last time I wrote about this. If the end of keeping postliberals out of power justifies the means of ditching liberal norms, then we’re arguing over which flavor of postliberalism we prefer long-term. If we fear and loathe Trump for setting fires for the justice system, as we should, we should not want Joe Biden adding any fuel by making political hay out of what happens there.

Some anti-Trumpers will read that and conclude that I don’t understand the stakes of the election. When democracy is on the line, our side should exploit every advantage it can instead of fighting with one hand behind its back. We can lose by following norms or win by shedding a few of them.

But that’s the New Right’s philosophy. The story populists tell themselves to justify war on the liberal order is that civic norms have made meaningful political progress impossible. To neutralize the extraordinary threat posed by their enemies, extraordinary measures need to be taken. “The norms” are for normal times. Those who know what time it is recognize that our era isn’t normal.

If that’s the attitude we’re going to take with Trump, we should make a list of which rules are and aren’t fair game to be broken in the interest of defeating populists. If, in the name of winning, Biden is willing to abet the MAGA effort to delegitimize the justice system by doing a little end-zone dancing over the Manhattan trial, what other norms should he and we be prepared to fudge?

Winning this year is crucial, but so is not normalizing populist political narratives. To do so would be to trade a short-term victory for classical liberalism for its long-term defeat.