Gaming Out a Guilty Verdict

We may have a verdict this week in the case of The People v. Donald J. Trump. 

After closing arguments in Manhattan today, the jury will start its deliberations Wednesday on the 34 criminal counts against the former president. More than a year after his indictment and arraignment and following a six-week trial, Trump will probably have to wait only a couple of more days before he hears from the jury.

Friday afternoons get more than their fair share of verdicts, as jurors tend to find consensus more readily when they’re missing out on weekends, not time on their jobs. 

He could get a hung jury, sure. But getting to a mistrial takes a lot longer. In my years covering the courts, especially in high profile cases, judges do not yield lightly to a foreperson’s claims of impasse. As hard and as long as the lawyers in this case have worked to empanel a jury for the most famous man in the world and present the complicated evidence, Judge Juan Merchan would surely make the members of the panel stew for some time before he released them.

That’s how you get to a partial conviction. The holdouts agree to vote “guilty” on some of the charges in exchange for “not guilty” votes on the rest. Each of the 34 counts relates to a specific document prosecutors say was falsified by Trump or at his behest. They could, for instance, reject the charges based on actions by former Trump lawyer Michael Cohen but still convict on Trump ledger entries or checks. 

I have been uniformly impressed by the seriousness with which jury members take their jobs in every case I covered, but also noted their willingness to get to a deal. And here, while the political implications are significant, the penalties are light. Even a conviction on the full boat of charges would probably mean only a couple of months in prison, and quite possibly just probation, for an elderly defendant with no prior criminal record. The stakes feel high based on press coverage, but as a matter of crime and punishment, no one’s life is on the line. A good foreperson might understand, ahem, the art of the deal.

I don’t know how the betting odds on a Trump conviction have been running, but it would hardly be a long shot for him to be found guilty. This is Manhattan, in a county where Trump got 12 percent of the vote four years ago. He’s behaved boorishly throughout the proceedings and attacked a process that by now, jurors probably feel pretty proud to be a part of, even if they’re ready to go home. 

But the question the world has really been asking isn’t about the disposition of the case, but the disposition of the electorate about it. The most recent Marquette University Law School poll in key battleground Wisconsin suggests a logical conclusion by voters: Without a conviction, Trump led President Joe Biden by a robust 6 points. With a conviction, Biden led by 4 points.  

The way Marquette did the poll was to break the respondents into two groups: half were asked about their vote if Trump was found guilty, the other half if he was found not guilty. In both groups, the share of respondents saying they would vote third party or not vote was the same at 18 percent. With a conviction, Trump went from 44 percent to 39 percent, while Biden went from 38 percent if Trump were found not guilty to 43 percent if Trump is found guilty.

That 10-point swing tells us that there is a significant chunk of the electorate that would actually switch its vote based on a conviction, or at least they think right now that it would.

But let’s imagine on a mild and sunny afternoon this Friday, Trump gets popped. Guilty, guilty, guilty. Then what? It’s not like he’s going to be led through the sally port in handcuffs and taken to Rikers Island. In any case, sentencing would take months, and in this case there would surely be a mountain of appeals. If he is convicted, it might be years before Trump is sentenced, even if he doesn’t win in November.

So Trump would be a felon … probably maybe. Having evidently delayed the trials on the other, more serious charges against him until after the election, this seedy case will stand alone in the court of public opinion. Even many of Trump’s harshest critics have acknowledged that it was quite a bit of bootstrapping by an ambitious district attorney, so the Republicans would have a pretty easy time spinning the verdict. 

“We’ve seen this judge reversed before, and we are going to see it again here,” they will tell us. And as the news media dives into the particulars of New York appellate law and the nature of pre-sentencing bonds, it will start to feel like a fizzle. 

That’s probably exactly what Republicans should be hoping for: a conviction followed by a question mark.

One of the ways that the trial has most benefited Trump is that it has kept him busy and scared. Whatever Trump says about the judge and his gag order, this trial has consumed the former president’s attention. If he’s going to act crazy, better for Republicans that he act crazy about his personal problems rather than politics and policy. 

Imagine how much more his administration could have done if Trump had been consumed in court cases rather than blundering into policy questions via pre-dawn tweets and impromptu press conferences.

With months to turn the case into a muddle to the public and Trump walking around free on appeal, a conviction wouldn’t be so bad for his chances. It’s not that it would help, it’s just a harm that could be mitigated and come with some ancillary benefits in the way of offering some check on Trump’s bad behavior.

What Republicans should worry much more about is a Trump acquittal. Beyond the reach of the judge and jury and primed for revenge, an emboldened Trump would be hell on wheels. Ahead in the polls and having beaten the rap, Trump would come careening into the general election, as always, his own worst enemy.

Trump won the presidency in 2016 in substantial part because of the Access Hollywood scandal. The tape of Trump bragging about grabbing women’s genitals and forcing them to kiss him came out exactly one month before the election. It sent his numbers through the floor, but it also made him afraid enough of a humiliating landslide defeat that he became willing to behave just a little better, to be just a little more disciplined in his messaging, to be just a little more normal.

When then-FBI Director James Comey dropped the Anthony Weiner laptop story into the campaign narrative 11 days before the election, Trump had already been running scared for three weeks. His relative discipline had left the space clear for a story that, until it was debunked, seemed to reaffirm all the worst suspicions persuadable voters had about the sneaky, sleazy Clintons.

Americans have forgotten a lot of the exhaustion they felt about Trump and his antics, his cruelty, and his chaos. A post-acquittal Trump who is ready to settle scores and take no heed of warnings to behave himself would remind voters only too well why they got rid of him in the first place.

It’s never good to have a nominee who Americans think is a crook and a lout, but it’s even worse to have one who doesn’t know that they see him that way.