NRPLUS MEMBER ARTICLE W elcome to the Big Top. Hope you enjoyed the opening act. Remember, though, there are three rings to this circus. So far, we’ve just gotten the clown car. Donald Trump should know that the lions are coming.
It is only natural that all eyes this week were on state criminal court in lower Manhattan, where Trump was arraigned on the indictment brought by Alvin Bragg. There is no point belaboring the record with the sundry flaws in those charges (see, e.g., here, here, here, and here). So unabashedly political was this leveraging of law-enforcement power against the Democrats’ archnemesis that even progressive commentators have misgivings.
For now, though, the plan is working like a charm. As I’ve been contending since Joe Biden took office, the savviest Democrats know that they have a very weak president whom they won’t be able to nudge aside without exposing a host of problems. The incumbent, for all his flaws, papers over the deep intramural divides and woke nuttiness that a nomination fight would spotlight, to say nothing about the heiress-apparent problem posed by Kamala Harris. The Dems’ best shot in 2024 is and has always been running against Trump — the same guy who won them the Senate in 2020 and held it for them in 2022. If he is the Republican nominee, they win going away.
Don’t be fooled by snapshot polls showing Trump beating Biden — which Democrats are hyping because, for now, they want us to think he can win. He can’t. Don’t allow the intensity of Trump’s base supporters to mask how deeply unpopular he is with the country writ large. He had consistently low job-approval ratings as president — reaching 49 percent a couple of times but generally staying in the low 40s and going down to 34 by the time he left office (which actually seemed high under the circumstances). It was a statistical miracle that he won in 2016 — with just 46 percent of the vote in, substantially, a two-candidate race. Trump could never again win a national election after the 2020 coup attempt, the Capitol riot, and his continued delusional insistence that reelection was stolen from him.
Moreover, the demagogic riffs that make MAGA crowds swoon — and that Trump doubled down on at this week’s Mar-a-Lago rally (because why wouldn’t an arraignment be the occasion for a rally?) — are exactly what most Americans find deeply disturbing about him. If he’s the nominee, the Democrats will retain the White House by ten points or more, with the tide sweeping the Senate and the House their way, too. Trump would have you believe he’s your crusader against wokeness. Down here on Planet Earth, he’s wokeness’s big chance to cement its reign.
Democrats have field-tested their plan. In 2018 and 2020, they backed pro-Trump congressional candidates over more-electable Republicans in GOP primaries, and then crushed those MAGA nominees on Election Day in November. It worked. And the apparent Republican response has been to take Trumpy candidates who have proven that they can’t win elections and put them in charge of state GOP organizations, ensuring more zany candidates . . . and more Democratic captures of what ought to be red seats.
The experiment has convinced the Left that the best way to get Trump nominated is to be in-your-face aggressive and unapologetically partisan in wielding law-enforcement powers against him. The Manhattan indictment of Trump has ignited his nomination bid in a way his lifeless announcement of that bid did not. He’s had his best week in years. No, I don’t mean by getting released on his own recognizance; I mean by zooming ahead of his (as-yet-undeclared) rival Ron DeSantis in early polling.
Yeah, the election is still 20 months away, but it’s getting late early. Trump, yet again, is diverting attention from exactly what Republicans need to run on: Biden’s misadventures — e.g., new revelations that Biden misled the public about the Chinese spy balloon’s capabilities, the emerging Chinese–Russian–Iranian–North Korean–Saudi axis, banking collapses, Biden’s choice of a mass-shooting at a Christian school (by a woman who “identified” as a man) as an occasion to fret about trans dignity and victimhood, etc., etc.
I’m not sure how much the prosecutors in the various Trump investigations are coordinating. Bragg, for example, has made commitments to a radical progressive base in New York City that wants Trump dragged through a painful process regardless of whether he is convicted of a crime. Biden Justice Department special counsel Jack Smith, by contrast, is methodically building an ironclad case (or two) against Trump and won’t launch it until the time — legally and politically — is right. Smith has more incentive to coordinate with Fulton County district attorney Fani Willis’s investigation of Trump’s effort to overturn the 2020 election in Georgia; after all, that probe intersects with his own January 6 investigation. Yet, regardless of whether and how much the prosecutors are huddling, if all of them were executing one big Democratic strategy to get Trump nominated and get Biden elected in 2024, it’s hard to imagine that Bragg would be doing anything different from what he is doing now.
Of course, it’s not just the prosecutors in New York, Georgia, and Washington. New York attorney general Letitia James has a massive civil suit against Trump based on the financial records that Bragg’s office had been trying to turn into an indictment; she’s gotten the Trump Organization placed under the thumb of a court-ordered monitor. Meanwhile, the SEC and federal prosecutors in Manhattan are investigating the financing of Trump Media, which owns his Truth Social platform.
In one sliver of what passes for good news on the legal front these days, Trump just got a reprieve in E. Jean Carroll’s defamation lawsuit, which stems from her claim that he raped her in the 1990s. The trial, which promises to be lurid if it happens, was scheduled to start on Monday. It has now been delayed by Manhattan federal judge Lewis Kaplan while the D.C. Circuit Court of Appeals decides whether Trump was acting in his official capacity as president when he lashed out at his accuser. (The lower court said he was not; if the appeals court disagrees, legal rules will effectively end the case.) If the case does go to trial, though, Kaplan has ruled that Carroll may elicit testimony from two other women who claim Trump similarly abused them, and may introduce as evidence an excerpt from the infamous Access Hollywood tape in which Trump bragged about being sexually aggressive.
That ought to be quite the spectacle if it happens, say, right around the Iowa caucuses.
That’s in January, so the primaries, like the defamation case, may get squeezed by Trump’s criminal trial in Manhattan, which Bragg — natch — is asking the court to schedule at the start of next year. In truth, there’s not much chance that will happen. Judge Juan Merchán is slow-rolling his congested court’s most famous case. The next conference is not until December, and there won’t even have been pre-trial hearings by then, so the chance of a January trial is next to nil.
I wouldn’t worry about it much. The world is going to look very different in eight months. In fact, it will probably look very different in eight weeks.
In the Georgia case, a judge has given District Attorney Willis until May 1 to respond to a Trump motion to quash the investigative grand jury’s report. There is no way the court will grant that motion, but Willis could moot the issue by forging ahead with the indictments that have seemed imminent since the report was published in redacted form a few weeks back. The grand-jury forewoman who went public in the election-tampering case strongly implied that Trump would be charged.
But like Bragg’s case, the state case in Georgia is a preliminary. The main event is going to be at least one indictment brought by Special Counsel Smith — which is why Trump spent at least as much time inveighing against him as against the Manhattan DA on Tuesday night at Mar-a-Lago.
The New York indictment may be the most historic thing that happened in Trump news this week, but it wasn’t the most significant. That distinction belongs to what’s gone mostly unnoticed: Smith’s decision to subpoena agents from Trump’s Secret Service detail to testify before his Mar-a-Lago grand jury.
Understand: The executive branch and the Secret Service especially abhor the specter of security officials testifying against their protectees. It eviscerates the bond of trust the Secret Service must maintain to guard people effectively, which requires their cooperation. Prosecutors do not summon Secret Service agents to a grand jury unless they are very serious about indicting.
Nor does the executive branch typically waive executive privilege, as the Biden administration has done regarding not only the former president but top Trump officials as well — up to and including the vice president and chief of staff. By taking that position, the Justice Department, which is usually in court advocating for robust executive privileges and immunities, is instead eroding them to the detriment of Biden and future presidents.
This makes no sense . . . unless this executive branch and its prosecutors have made nailing Donald Trump at some politically propitious moment their highest priority. Plainly, they are willing to take their chances with slimmer protection, willing to compromise the confidentiality that security officials need in order to convey frank advice and make good decisions for what they see as the greater good of getting Trump first nominated, then beaten in November, and finally convicted in court.
As I’ve pointed out ever since it was discovered that President Biden was guilty of illegally hoarding classified documents, the prosecutor — with the support of the media–Democratic complex — was sure to reframe the Mar-a-Lago probe into a grand-jury-obstruction case, rather than a classified-documents-retention case. That, Biden apologists will argue, is the rationale for prosecuting the former president but not the incumbent president.
Voila! Smith got the court to compel testimony from Trump’s private lawyer, Evan Corcoran, about the misrepresentations that were made under oath to the grand jury and investigators in June 2022 — when Trump’s attorneys falsely claimed that the package of 38 classified documents that they’d surrendered that day were the only remaining ones at Trump’s estate. Two months later, a hundred more such documents were seized by the FBI in its Mar-a-Lago search.
If Corcoran is testifying, it must be because the prosecutors have decided that he didn’t lie; he merely passed on to the investigators what he’d been told by his client. That, clearly, is why Smith forced him to testify about his conversations with Trump — which he was permitted to do because a judge invoked the “crime–fraud exception” to attorney–client privilege, finding that Trump had probably carried out a criminal obstruction scheme. Like the Mar-a-Lago employees who were also questioned, the Secret Service agents are being called to testify about Trump’s activities and the movement of various documents in the weeks after the June meeting. That is, if Trump was handling documents marked classified after his lawyers had told the grand jury that he didn’t have any such documents, then the grand jury was intentionally misled.
The noose is tightening. Smith is going full bore on January 6, too. That’s why he’s getting testimony from Pence, just as he did from other top Trump officials. It will be tougher, for legal reasons, to prove a conspiracy to obstruct Congress’s ratification of Biden’s Electoral College victory, but Smith is pushing hard to make that case.
He won’t have to push that hard on Mar-a-Lago. Comparatively, it’s a slam dunk. If Democrats have decided that they can ride out the political firestorm of indicting Trump while insulating Biden — and the obstruction scheme, they believe, is their solution to that challenge — then an indictment is coming. Bank on it. If Trump supporters become enraged by the double standard, they’ll push even harder for his nomination. See how this works?
Trump made lemonade out of this week’s lemons. He got indicted, but it’s an abominable case. That rallied not only supporters who claim he should now be the party’s nominee by acclamation, but even fair-minded detractors who are enraged about the Democrats’ two-tiered justice system. His candidacy got a boost — a sign of the times, since the unsavory conduct underlying Bragg’s flawed charges used to be disqualifying in Republican politics. But, of course, so did serial public lying, false claims of stolen elections, whipping up violent mobs to pressure lawmakers, recklessly mishandling national-defense secrets, misleading grand juries, and so on.
A few months from now, ironically, Donald Trump will remember the week of his first indictment as the good old days. The accumulated weight of his legal woes — at least the ones we know of, so far — would eventually sink him even if Smith wasn’t preparing a torpedo. The question is whether he’ll take the GOP down with him. Are Republicans going to let Democrats provoke them into nominating the one candidate who is sure to lose to Biden?