How Trump and Biden’s Legal Troubles Could Play Into Their Debate

Welcome back to The Collision, just one week before the first general election presidential debate between Joe Biden and Donald Trump. We think it’s highly likely much of what we cover around here—Trump’s conviction, his remaining criminal trials, Hunter Biden’s legal problems—is going to come up in Atlanta next Thursday. We’ll get into how the dueling candidates might want to approach all of this on stage.

The Docket

• A new Politico/Ipsos poll on the political fallout from Trump’s criminal conviction last month in New York features some complicated results. According to the poll, 21 percent of independent voters said both the conviction made them less likely to vote for Trump and that the conviction is “important” to determining their vote, while 47 percent of independents said both the conviction will not change their vote and that it is not important to determining how they will vote. On the other hand, 12 percent of independents said the conviction made them more likely to vote for Trump, whether or not it was important to their vote. In a race where the swing voter—an imperfect substitute for self-described “independents”—could drive the outcome, these are not insignificant findings. The question remains, however, if those views will hold until November.
• The Politico poll was taken between June 7 and 9, starting a week after the Trump guilty verdict and found that, overall, 52 percent of American adults say they believe Trump is guilty, with just 25 percent saying they believe he is not. Just a plurality of Americans, 40 percent, say Trump should be sentenced to prison, with 22 percent saying he should face no punishment, 18 percent saying probation without prison, and 16 percent saying only a financial penalty.
• Here’s an odd one: A week after his conviction on federal gun charges, Hunter Biden quietly submitted a request for a new trial but withdrew the motion just as quickly, CNN reports. His defense attorneys submitted the request the morning of June 17 before asking for the filing to be removed from the docket and have provided no public reasoning. The now-removed motion suggested that Biden’s trial proceeded without the federal appeals court returning jurisdiction of the case to the federal district court. The motion urged that Biden’s conviction be vacated.
• Has the White House put to rest the question of whether President Joe Biden will pardon Hunter or commute his sentence? Even before the verdict, the president told ABC News he would not pardon his son if he were convicted. We asked the obvious question in last week’s issue: What about commuting his sentence? In response to a question following a news conference last week, Biden said “no.” And when asked at the White House press briefing this week if the president had ruled out using his pardon and commutation powers, press secretary Karine Jean-Pierre responded, “Yes, he has.”

A MESSAGE FROM ORIGINAL JURISDICTION

Fact-based reporting and commentary about the law.

Original Jurisdiction aspires to be a source of incisive, fair-minded, occasionally entertaining commentary about law and the legal profession. Each week, David Lat breaks down the most important news about the courts (especially SCOTUS), law firms, and law schools. If you enjoy The Dispatch, you should enjoy Original Jurisdiction.

Try 30 Days Free

A Different Kind of Legal Debate

It’s been more than 1,300 days since Joe Biden and Donald Trump last met in a televised debate, and a lot has happened since. Biden won the presidential election. Trump supporters stormed the Capitol to stop the counting of electoral votes. Trump was impeached and acquitted for a second time. Inflation went up, the Afghanistan withdrawal went poorly, and the COVID-19 pandemic eventually got under control. There have been indictments, criminal and civil trials, convictions—and that’s just Trump. Hunter Biden, too, has been convicted of three gun-related felonies and faces a trial on tax charges in the fall. Oh, and each party’s presumptive nominees have gotten four years older.

So when Biden and Trump take the stage next Thursday in Atlanta for the first televised debate of the 2024 general election, it will be the first time most Americans will have a clear look at the presidential rematch they’ve been given. And what a rematch it is. One in 4 Americans holds unfavorable views of both President Biden and former President Trump—the highest share of “double haters” in nearly 40 years. And many of the remaining 75 percent aren’t exactly enthusiastic supporters either. 

This is the earliest general election presidential debate since the first televised debates in 1960. Biden’s team has said it requested the earlier date to ensure voters get to see the two candidates well before early voting starts. Biden’s team also requested specific rules—microphones will be turned off to limit interruptions and there will be no live studio audience. There will be no opening statements, and a coin flip will decide which platform each candidate stands at. 

While the rules may lend themselves to a serious debate on policy prescriptions, that’s not quite what anyone is expecting. There’s no doubt the moderators, CNN’s Jake Tapper and Dana Bash, will bring up Trump’s felony convictions and pending criminal indictments, as well as Hunter Biden’s own gun conviction and upcoming trial on unpaid taxes. The challenge both candidates face is how to effectively use those topics to their advantage.

Joe Biden

Biden’s team has been sticking with its theory of the election: that Donald Trump is a danger to the country. But as Axios recently reported, “senior Democrats, including some of President Biden’s aides, are increasingly dubious about his theory for victory in November, which relies on voter concerns about Jan. 6, political violence, democracy and Donald Trump’s character.” It’s hard to blame them. Biden’s current strategy doesn’t seem to be moving opinion polls. If this election is going to turn on voters’ repulsion with Trump, then Trump’s New York conviction should have mattered. But so far at least, it hasn’t fundamentally changed the race. What could Biden possibly do or say at a debate that would have more of an impact than 34 felony convictions? 

Nevertheless, viewers should expect Biden to reinforce his campaign’s message that a Manhattan jury found Trump guilty of felonies. “I think it becomes a little more difficult to ignore now that the campaign is spending so much money reminding voters that Trump is a convicted felon,” said Rodell Mollineau, a Democratic strategist.

Mollineau told The Collision the president’s goal should be to take that slogan and broaden the argument to all the ways in which Trump has flouted the rule of law. “It’s less about the former president being a convicted felon and more about a narrative of a man who believes the law does not apply to him,” he said. “That’s the bigger narrative the president would like to leave with voters, that [Trump] thinks he’s better than you.”

What Biden should avoid, Mollineau cautioned, is a protracted on-stage argument directly with Trump on the subject.

“I would say that getting into a mud fight with Donald Trump on any issue is not helpful. It might make him feel good. It might even motivate the base, but I think the base is going to wind up being there,” he said. “This debate is about reaching out to no-nos, double-haters, independents who are on the fence.”

But Brett O’Donnell, a veteran Republican strategist who has consulted with numerous campaigns on debate prep, told The Collision that because the debate is about winning over those swing voters, both candidates ought to pivot away from discussing the details of either the Trump or Hunter Biden trials. The competing legal issues affecting both candidates cancel each other out, he said, and it limits the time both Biden and Trump can make their pitch on the kitchen-table issues that undecided Americans will want to hear about.

“Both of them would be well advised to say, look, this race is about the American people,” O’Donnell said.

It would be a “mistake” for Biden to attack Trump on his criminal conviction, O’Donnell argued. “First of all, because of the Hunter trial, and second of all, because it moves the debate away from what Joe Biden really needs to do,” he said. “He’s got to convince people that, look, this is a choice election between me and Donald Trump, and my policies would be better than Trump’s.”

Joe Trippi, another longtime Democratic strategist, had a different take, saying Hunter Biden’s conviction shouldn’t stop the president from going on the offensive against Trump’s convictions.

“Hunter’s not running for president,” said Trippi, who advises the anti-Trump organization the Lincoln Project. “The president should say, ‘You’re running against me, not Hunter.’”

Mollineau added that Biden’s ability to “talk from the heart” about both the pain Hunter’s legal woes have brought the family, while recognizing the outcomes of the justice system, can work to the Democratic president’s advantage.

Sarah’s View 

The Biden team seems oddly confident that they can pull off what Democratic presidential candidate and Massachusetts Gov. Michael Dukakis failed to do in 1988—righteous indignation when someone brings up your family. Bernard Shaw opened the debate by asking, “Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?” Dukakis answered:

No, I don’t, Bernard. And I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime. We’ve done so in my own state. And it’s one of the reasons why we have had the biggest drop in crime of any industrial state in America; why we have the lowest murder rate of any industrial state in America …

Pundits were quick to pounce: “Wait, your wife was just hypothetically raped and murdered and you’re touting your record as governor?” Dukakis’ answer probably didn’t make a bit of difference to the final election outcome, but it became the go-to example (along with the awkward helmet photo) for why Dukakis was a lousy candidate.

The problem for Biden is that debates (and life) are about expectations. We all expect Biden to go to his emotional well when Trump brings up Hunter Biden. The question isn’t whether he can do better than Dukakis. The question is whether Biden can do better than we think Biden will do. And what makes Trump such a dangerous opponent is that it’s so hard to guess exactly where the punch is going to come from.

Biden’s best bet at the debate is to surprise. He needs to have his Sister Souljah moment with 80 million people watching. Tell the left that it’s wrong on … something. There’s plenty to choose from. Immigration enforcement, transgender surgical treatment for minors, anti-semitism. But if Biden just spends the night trying to land blows against “the MAGA right,” I predict he will fail to move the needle. 

Donald Trump

To the extent that Trump needs to address the inevitable questions about his fitness for office as a convicted felon, the Republican should avoid focusing too much on himself.

“He’s got to turn that into not a complaint about what happened to him, but the danger that this could happen to other Americans or they’re using the justice system to stop him from campaigning,” O’Donnell said. “It can’t just be a straight airing of grievances. It’s got to be about how this affects the American people.”

If pressed about his conviction by the moderators, O’Donnell said, Trump can note that the case will be under appeal, then pivot toward a better message about the economy or immigration.

“‘This election is about the American people, and they want to hear what we’re going to do to make their lives easier, not to make my life easier,’” O’Donnell suggested as a potential line for the Republican nominee.

But what’s the likelihood the famously combative Trump will avoid being baited into arguing about his innocence or a rigged justice system? 

“I do not think it is in Trump’s instincts,” said Mollineau. “I think he is obsessed with grievance and all who have wronged him.”

The risk for Trump, Mollineau added, is mistaking the positive reaction his score-settling rhetoric gets from his base for a message that appeals to those crucial swing voters who will be tuning in. Reading from the MAGA hymnal about a rigged justice system may not do the former president any favors with the voters he needs to convince. “It makes the former president seem conspiratorial and delusional,” Mollineau said.

Sarah’s View

When it comes to expectations, Trump always has it easy: Nobody knows what to expect from him. But Trump is at his best when he’s lighter and funnier. Less “I am your retribution” and more “Would you get a load of this guy?” The more difficult Trump is to pin down politically—eschewing traditional Republican policy talking points on things like abortion and taxes—the harder it will be for Biden to land a punch. Trump needs to give Biden room to sound like the incumbent, the politician, the guy who can’t get off the script his team had him memorize. 

Where Trump will go wrong is believing his own hype about Biden’s mental fitness. Underestimate the president at your peril. But Trump can work this to his advantage too. Biden also isn’t always the congenial grandpa. Check out his 2012 debate with Paul Ryan or talk to folks from the Obama administration. Biden can be a real a–hole. If Trump can draw out that guy, then it takes away another way for Biden to distinguish himself from Trump. 

Debates work for Trump because he is charismatic (don’t confuse charisma—making it so that people can’t look away—with likability or charm). But Trump has off nights. And in a race this close, it’s always a risk to be the erratic one. 

The Bottom Line

The realignment of voters between the two parties—including along education and gender lines—is proving to be a stronger force than Biden’s campaign message. And that’s the problem. Trump is benefiting from the political status quo. There are more non-college-educated voters than college-educated voters. So if the two parties are going to trade that constituency, Trump comes out ahead. Realignment around gender also seems to be helping Trump because it is allowing him to make inroads into Biden strongholds—young voters and Black and Hispanic voters—where he never had many of the female voters to begin with.

Biden needs this debate to move the needle. Trump doesn’t. And once again, the data seems to favor Trump: There is very little evidence that debates have historically mattered. According to one recent academic study, “debates neither helped undecided voters to make up their mind nor caused those who had already made a decision to switch candidates.” And the timing may not help either. There’s a reason network TV shows have their season finales in May. The assumption is that a lot of people are checked out for the summer. The most watched presidential debates in history have been those with Donald Trump on stage—but we’ve never had one in June.