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The courage of their convictions


In retrospect, perhaps the most striking aspect of DANY’s prosecution of Donald Trump is that so many liberal legal commenters thought it was a bad case, when the evidence that Trump was in fact guilty of exactly what he was charged with doing turned out to be completely overwhelming. Why was that?

The odd thing about all the anxious liberal hand-wringing is that once the prosecution’s various filings were published, the legal argument in the case was fairly straightforward. As Quinta Jurecic carefully explains at Lawfare, the core of it was that Trump had falsified business records, namely paying back Michael Cohen’s hush-money bribes to Stormy Daniels, which he disguised as payments for legal services. This is normally a misdemeanor, but it is upgraded to a felony if in the service of other crimes—even if they are only attempted—namely, falsifying other business records, tax fraud, and most importantly, violating state and federal campaign finance law.

And the prosecution’s case had Trump dead to rights. Multiple and reinforcing pieces of evidence and testimony proved that Trump knew the purpose of the payments was falsified, and that they certainly constituted a political expenditure. After all, the entire reason for paying Daniels off, as Hope Hicks testified that Trump told her, was to prevent the story getting out and tanking his 2016 campaign.

It’s hard to guess why so many Trump critics didn’t like this case. Part of it is probably what I call “chauvinist cowardice,” a sort of knee-jerk resistance in the Washington establishment to confronting the fact that America is not an exceptional nation, and in fact is extraordinarily corrupt. Part of it is the fact that, as Josh Marshall points out, the case is “by far the poor relation of the family of Trump prosecutions.” It’s sort of unseemly to convict him on this one when the far more damning classified documents case and January 6th cases remain tangled up in federal courts.

This is the whole “Al Capone convicted of tax evasion” response, which always fails to note that in fact Al Capone was guilty of egregiously criminal tax evasion on a massive scale, which is the kind of thing that gets people who don’t also happen to be notorious mafiosi sent to prison.

Yes it’s true that Donald Trump is guilty of far more serious crimes than this one, but this too was a serious crime — covering up an illegal campaign expenditure in order to deceive the public into voting you into the presidency of the United States is not a trivial offense.

The Republican establishment’s reaction to the conviction has been instructive.

First, essentially no one is arguing that Donald Trump didn’t actually do what the jury found he did. No one believes Trump’s defense, which is that (a) He didn’t have sex with Stormy Daniels; and (b) the $420,000 he paid to Michael Cohen as both a reimbursement for paying off Daniels and a reward above and beyond the $130,000 that Cohen paid her was actually for legitimate legal services Cohen performed for Trump.

Both these claims are incredibly obvious lies, that again no one in the Republican establishment believes, any more than the jury did. In other words, there’s no actual claim by anyone of importance that Trump is innocent of what he was convicted of doing.

Instead, the defense goes like this:

(1) This was just a technical violation of campaign finance laws, and people aren’t normally prosecuted for technical violations of those laws. This can be thought of as the “people aren’t normally prosecuted for driving seven miles over the speed limit so it’s unjust to prosecute this guy for driving drunk and killing a pedestrian as a result” defense, and should be treated as exactly as seriously.

(2) Future Republican presidents won’t leave office if they lose presidential elections because they know they will be targeted by the corrupt Democrat-controlled criminal justice system. Again, this argument does not actually involve any claim that Donald Trump was innocent of the crimes for which he was just convicted, because no one is making that claim. It also doesn’t involve any claim that Democratic presidents will refuse to leave office, because no one is making that claim, either. This seems to me a remarkably under-reported fact, given that’s it’s the purest grade uncut version of IOKIYAR imaginable. And it’s being argued quite openly, by, most notably, Sam Alito, who happens to be on the Supreme Court of the United States, as opposed to being a guy on a blog somewhere.

It’s going to be an interesting five months.

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