At 77 years old, former President Donald Trump has reached the average American male life expectancy. While more virile than President Joe Biden, who would be more than halfway to 90 by the end of a second term in office, whatever gig Trump achieves in 2024, it will likely be his last. While activist prosecutors may hope that their barrage of legal challenges may handicap Trump’s second bid for a second term in the Oval Office, it has also created a dangerous game theory. As Trump will tell his supporters, the outcome of the 2024 election means he will spend his final years in the White House or in prison.
The first round of indictments from Manhattan District Attorney Alvin Bragg was by far the weakest, a brazenly political attempt to apply federal campaign finance law to less than a quarter million dollars paid to a porn star who alleged a consensual one-night-stand with Trump nearly 20 years ago. The federal documents case arguably has Trump dead to rights, though the Republican faces a potentially favorable jury pool that will be uniquely susceptible to an argument for jury nullification. Namely: What good does it do to prosecute Trump for what Hillary Clinton got away with when the outcome was effectively the same?
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But the latest crusade by special counsel Jack Smith is its own beast, a legal litigation of a political catastrophe. To levy a charge of conspiracy against rights, Smith had to dust off a 153-year-old law and apply it in a novel way. Smith charges Trump with defrauding the United States but never establishes the necessary property or money Trump succeeded in swindling from his alleged victims. Most controversially, Smith criminally charges Trump with obstructing the election and conspiracy to do so, but as a matter of legal substance, Trump’s defenders will argue he was acting no differently than Democrats denying the results of the 2016 and 2000 Republican presidential victories.
In a less shameless time with a less shameless defendant, a Ron DeSantis or Tim Scott could exchange the promise of a pardon with Trump’s exit from the race and an endorsement, but Democrats have left Trump with nothing to lose and everything to gain. A Trump staring down the dichotomy of either dying in prison or the presidency is more dangerous than Trump with a chance of a dignified retreat to his Mar-a-Lago or Manhattan manors.
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In ramping up the stakes, Trump’s prosecutors have inadvertently run up the risk that he pull a repeat of his atrocious behavior after the 2020 election. With a D.C. jury pool, Smith may get justice for Jan 6, but it may be more prologue than past, especially if he succeeds.