Trump's Criminal Proceedings are Useful Kabuki Theater for Democrats

My latest Verdict column, Delaying Trump’s Trials Is What Savvy Democrats Should Have Wanted All Along, extends my argument that Donald Trump's obvious desire to delay his criminal trials -- with notable success thus far -- is counterintuitively good for the country.  In Dorf on Law columns published last summer (on June 28 and August 4) and on February 29 of this year, I argued that any type of pre-election "vindication" of Trump, most likely a hung jury, would have a very bad impact on the election.  I also argued that, other than the idolators who deny Trump's manifest guilt, no one would feel that justice had been served if Trump were somehow convicted and then jailed, only to become President again and walk free after only a few weeks or months behind bars.

The best (perhaps only) potential reason to reject my argument is that a conviction before November 5 could change the outcome of the election, turning either a Trump win into a Biden win or a small Biden win into more decisive Biden win.  Given that a win would be a win, why would anyone care about the latter?  Does size matter?  The argument there is that it would be more difficult for people to abet another Trump coup attempt if the margins of victory were all larger than in 2020, which is an adorably quaint argument that completely ignores the existence of Trump's alternative reality.  I argued in 2020 that Trump would claim that losing by a landslide was in fact proof of election theft, and he has done even more to prime his people to believe such a lie this year.

Either way, I am on the record arguing (repeatedly) that in fact Trump and the Republicans will succeed in negating a loss at the ballot box, either through legalistic or violent means -- likely both.  If we were to set that grim prediction aside, however, it would indeed matter whether a Trump conviction before Election Day could change the outcome, saving the country from what would almost immediately become a dictatorship.

I argued in my Verdict column, however, that there is no reason to believe the opinion polling showing that some nontrivial fraction of respondents would change their votes from Trump to Biden if Trump were convicted before the election.  The delays, therefore, are not what might doom the country and the world to a resurgence of fascism.  In fact, the delays might save us.

By coincidence, yesterday also saw the publication in The New York Times of an interview with David Byler, who is identified as a "polling expert."  (What did that poor guy do in a previous life to deserve such a miserable fate?)  Asked directly whether the voters in question would in fact do what they claimed that they would do, Byler endorsed one of the key arguments that I offered in my Verdict piece.  (I am not saying that he did so after reading my piece, which is not only unlikely as a general matter but would also have been impossible, given that he was interviewed before my column was published.)  Here is the first part of his answer:

The first question is: Are people good at predicting their own behavior? The second is: Is this a real liability for Trump? I would say no, people are not great at predicting their own behavior. There’s probably some social desirability bias here. People would say: Oh, I’m a respectful person. I’m a reasonable person. Of course I would never vote for someone who’s a convicted felon. And then the actual events unfold and they hear messaging from both sides, including people that they’re sympathetic to. Some of these people who are projecting that they would not vote for Trump end up coming back around to him.

Or as I put it: "Polls have become increasingly unreliable, and responses to hypothetical future criminal verdicts might be nothing more than virtue signaling."  Byler did, however, go on to make a halfhearted argument that a conviction might matter:

You can look across different polls and see that on questions around attributes like honesty or integrity or things in that vein[,] Biden is often a winner. So if a court case were to go badly for Trump and suddenly corruption or morality or some issue where the candidate’s personal morality is injected into the race, I think that is bad for Trump. I think that is good for Biden.

Perhaps, perhaps not.  What he did not address was what it means for "a court case ... to go badly for Trump."  As I have pointed out, there is now simply no way that a Trump conviction could become final in time for the election.  Appeals (and more appeals, and yet more appeals) are inevitable.  So a court case going badly for Trump -- so badly that it would flip some voters -- seems highly unlikely, because such hypothetical voters could still console themselves by thinking, "Well, I heard that the conviction might be overturned, so we still don't know."

But would the conviction itself not be meaningful?  Byler said that if "suddenly corruption or morality or some issue where the candidate’s personal morality is injected into the race, I think that is bad for Trump."  But corruption, morality, and personal morality are going to be front and center in the campaign in general, and it is not a conviction but a trial that would inject that into the race.  Indeed, even if every trial is ultimately delayed past November, the legal proceedings that will be necessary to make all of that happen -- arising from four different venues -- will keep Trump's indictments in the news pretty much nonstop.  And that, even according to Byler, is bad for Trump and good for Biden.

All of which leads back to the point that I have made all along, which is that Democrats should not worry about the delays.  Indeed, they should welcome them.  I made that point again in yesterday's column, adding that because this was obvious from the jump, it should not have been necessary for savvy Democrats to see Trump's successful delaying tactics as a "lemonade from lemons" situation (although I suppose it does not truly matter when Democrats figured that out).  There are no lemons here.  Delays in Trump's cases are good for Biden.

Toward the end of yesterday's column, I noted that "a dishonest prosecution in fact would be just as politically valuable as an honest one, but fortunately there is no evidence that any of these prosecutions lacked the requisite facts and law to move forward."  That is not only fortunate as a matter of morality -- that is, Biden did not in fact engage in banana-republic behavior, which Trump has already promised that he will do if he gets the chance -- but it means that there is no conspiracy that could unravel before the election.  At this point, Trump's people have had some success throwing mud at Fulton County DA Fani Willis (with a huge and unprincipled assist from the judge, as Professor Dorf pointed out earlier this week), but there is nothing to Trump's constant, evidence-free assertions that the prosecutions are a political operation.  If anything, the Biden Administration tried not to "go there," which led AG Merrick Garland to drag his feet for years.

All people who oppose Trump (and who believe that the election results will matter) should thus be happy about the delays.  Even though I am arguing that Democrats should not fret -- indeed, that they/we should delight in them -- that is not to say that anyone should say so out loud (other than me, because no one listens to me).  This is now political theater of the Kabuki sort, that is, "an event characterized more by showmanship than by content."

This is partly a matter of playing the role of Br'er Rabbit to Trump's Br-er fox (setting aside the racial aspect of that parable).  Democrats need to continue to be outraged, or to appear to be so, for this to work at all.  If Trump were to see Democrats openly embracing my analysis, after all, he would do what he always does: turn on a dime for perceived advantage.  As I noted yesterday, it is also good that Democrats are hammering the Supreme Court for taking up the presidential immunity issue.  More generally, the corruption that we see among Republican-appointed jurists is simply staggering, and everyone who does not support Trump should be appalled by the naked partisanship that we are seeing.

After all, there is no jujitsu involved in the Republicans' embrace of Trump's strategy of delay.  If, say, any of the hyper-partisan conservative Supreme Court justices understood what I am saying that Democrats should (silently) understand, then he or she would stage their own little morality play, declaiming with great fanfare that they have no choice but to call balls and strikes, even if it means disappointing one's political allies.  The judge in the Florida case, meanwhile, is an embarrassment to my alma mater and clearly incapable of nuanced thought.

For all anyone knows, Democrats are in fact all in on the strategy that I am describing here, playing their roles masterfully.  If so, they are truly great actors, because many of them seem to be in danger of suffering from aneurysms on a daily basis.

Either way, as I wrote in my first column on this topic: "This is all very cynical and tragic, because my message here is ultimately that Trump and his cultists have already irreversibly turned this into a matter of trial by election."  Because that is still true, even if I were capable of believing that the 2024 election will be determined by the voters, I would not be worried when Trump's trials continue to be delayed.  I might even crack a smile.