Why Trump Will Never Be Indicted on Federal Charges
A novel and persuasive argument.
Former federal prosecutor Michael J. Stern takes to the unlikely destination The New York Daily News to provide “The real reason the feds haven’t indicted Trump.” And it’s not only plausible I’m mildly embarrassed that it hadn’t occurred to me previously:
If Trump were charged, it’s unlikely he would negotiate a plea deal. Instead, he would go to trial and make every step of the process a platform to cast himself as a victim of a vindictive Biden administration. He would use the renewed attention to spew lies about the legitimacy of the 2020 presidential election. And he would raise money, lots of money, to fund his anticipated 2024 presidential campaign.
But most important, despite a mountain of evidence that would convict most people many times over, Trump would not be convicted. Criminal convictions require a unanimous verdict. On a 12-person jury, there are going to be Trump supporters.
The Republican National Committee recently proclaimed that the people responsible for the violent attack on the U.S. Capitol were engaged in “legitimate political discourse.” Members of Congress, right-leaning media, and much of the Republican base consider the Capitol rioters patriots.
That’s a really good point. And, while I had focused previously on a general reluctance of DOJ to go after former very senior government officials, both because of the dangers of politicizing the criminal process and because losing those cases would be embarrassing, Stern argues a loss here would have cascading effects:
And so, it is a near certainty that at least one juror would accept the widely held Republican position that any prosecution of Trump is political persecution. That would all but ensure a hung jury in any case brought against him. Such a circumstance would have ramifications far beyond the prosecution of Trump.
Ninety-eight percent of federal cases are resolved short of a trial — mostly by guilty pleas. The federal court system would be crippled if many more defendants started exercising their right to a jury trial.
Pulling back the curtain to reveal a Justice Department incapable of convicting the former president, despite overwhelming evidence, would be a disaster for DOJ. It could lead to defendants across the country taking their shot, hoping they too could convince at least one juror to hang their case. Garland and DOJ attorneys know this and must be terrified at the prospect.
I find this less persuasive than the “Trumpers would ensure a hung jury” argument. The reason most deals go to plea is that prosecutors hold all the cards—an army of the best lawyers and essentially unlimited resources means that, even if the defendant wins, they’re financially ruined. And the ability to stack charges makes the risk of being convicted so extremely high that people often plead to the lesser charge even if they’re not guilty. I’m not convinced that one high-profile win would change that. I don’t recall a surge in trials after O.J. Simpson got off for double homicide, for example. People understand that celebrity justice is different.
Shorter Stern: “We’re cowards who are afraid of being losers. Therefor we will silently endorse egregious criminal behavior by certain people with ample resources.”
OJ who? You mean that former professional (?) ball player (what sport did he play?) who ended up in prison anyway?
(s// just pointing out that nobody but nobody gives a rat’s ass about oj anymore. if only the same were to happen to trump, we might never here from the fat slob again)(a man can dream, can’t he?)
@OzarkHillbilly:
Stern’s just being pragmatic. He’s right. It would be impossible to find a group of twelve people who’d consider the evidence dispassionately and return a guilty verdict against Trump. That’s probably true on the state level as well, even in New York City. Perhaps it explains why Alvin Bragg, the D.A. for Manhattan, seems so reluctant to pursue the case: It’s pointless. And, worse, Trump would emerge a bigger hero to his fans than before.
I don’t like it any better than you do.
@OzarkHillbilly: Stern is no longer a federal prosecutor. He’s not making a decision but explaining one.
As to OJ, there were two hugely successful documentaries on the trial just last year. The case remains salient and, indeed, is now salient for those who aren’t old enough to have cared in real time. In any case, the analogy holds: seeing a big-name criminal walk doesn’t change the incentives for regular folks.
So why don’t we just pass a law right now that says anyone with money or political power can do whatever they want and there will never be any criminal penalty. Maybe we could double prison sentences for poor people to show we’re still tough on crime. Heck, it works for the IRS, who can’t afford to chase rich tax cheats so they double down on EITC violations.
If we want a society where the rich and powerful are above all laws, then we should codify that.
If not, then despite the difficulty, we have to prosecute rich people. Or we’re not better than Russia, with its untouchable oligarchs. Or Saudi Arabia, with its untouchable royals.
@wr:
Rich people get convicted and imprisoned all the time: Bernie Madoff, Jeffrey Skilling, Martin Shrkeli, Oliver Schmidt, El Chapo, Phil Spector, Leona Helmsley, etc. It’s a long list.
The difference is that none of them was adored and worshiped as Trump is. Or O.J. Simpson was.
Benito certainly won’t ever be convicted if no criminal case is brought to trial.
@OzarkHillbilly: Emotional histronics and wishful thinking do not result in convictions. And a non-conviction or acquittal is more damaging than avoiding the same.
The civil cases to break Trump are a path
@Kathy:
Find a jury of twelve that will unanimously vote him guilty. You can’t. Millions of people think he’s the G.O.A.T. as well as their savior. There will always be one supporter on the panel. Probably more than one. When the jury hangs and Trump walks, he becomes an unfairly persecuted martyr as well as a savior.
I still think the bigger problem for the DOJ is that once they pull on that string it reaches so deep into the GOP that it would be calamitous for our political system.
You would essentially have a a bunch of people in the Trump administration, as well as his family.
There are at least ten members of the Congressional GOP Caucus involved in the conspiracy.
And the GOP leadership in at least 5 states that submitted false electoral documents.
Then you have all the actors on the periphery; Rudy, the Kraken, Roger Stone, the Pillow Idiot, Flynn, Eastman, Ellis, and on and on. And don’t forget Ginni Thomas – the wife of a god-damned SCOTUS Justice.
Imagine all the perp-walks.
No…the best I dare hope for is that someone figures out a way to invoke Section 3 of the 14th Amendment and keeps the fat fuqer out of office. And a bunch of the other conspirators too. He’s 75 and un-healthy…what’s he got, 7-8 more years to live anyway?
Is that something that could come out of the January 6th Commission? Who knows? Nothing else is likely to.
Baloney. If you can convict a drug lord who can threaten the lives of jurors you can convict Trump.
@James Joyner: I wasn’t referring to prosecutors in anything but the most generic sense. Stern was saying that there is nothing worse for a prosecutor than losing. My judgement that they are cowards stands.
As far as OJ is concerned, my point was that we should be so lucky as to get a similar result with trump, where nobody cares what happens. It was sarcasm, James. Hence the s//.
Fvck off. I engaged in neither. I was acknowledging reality. Try it sometime.
@Michael Reynolds:
Michael, I think you may be underestimating the power of the sway Trump holds over his followers. Drug dealers, fearsome as they may be, don’t have that particular pull.
Listen, I’d love to be wrong about this. But I don’t believe I am.
@Lounsbury:
If the system is completely incapable of holding Trump to account in any manner, does it matter if it gets damaged further? It’s like worrying about the tire wear on a car that has an engine fire.
@CSK:
I think something happens to people in a jury. Not always, but often. They become part of something new, part of a new hive mind. Maybe 1 in 5 potential jurors is a hardcore MAGAt in the country overall. In a DC or NY jury that will be more like 1 in 20. If you can keep the number of MAGAts down to a single juror, I suspect they’d be swayed – they’re obviously of weak mind to begin with.
In fact we just got a jury conviction of a MAGA rioter. If a jury can convict a cult member, how can we be so sure they won’t convict the cult leader?
In any case it’s not all about a conviction, it’s also about presenting the evidence to the country. And if the jury hangs on a single MAGAt that sends a message of its own.
This isn’t sports, I have no sympathy for any prosecutor who fails to to their duty because they’re worried about their win-loss record.
I want to note before I go about my day, that nothing that was said in response to my original comment contradicts what I said. You all just excused the behavior for “reasons”.
I want to note that the issue goes way beyond trump because I have heard the same excuses for why white collar crime is not prosecuted nearly as often as other crimes. Starting with, “It’s really hard to prove,” to “Jurors lose interest because it’s so complex,” to, and they never say this but you know it’s in their minds, “They have the resources to put up a staunch defense.”
That is the root of “Just Us” in America.
@Michael Reynolds:
I see your point, but there’s a big, BIG difference between some MAGA rioter no one ever heard of and Mr. MAGA Himself.
I used to think that Trump fans had merged their identity with Trump’s the way they did with Sarah Palin (“I am Sarah Palin!”) but I’ve come to believe that they view him as an exalted being. He’s Christ on the cross for the 21st century.
Again, I’d love to be persuaded differently.
I think there is a possibility that there is some criminal case out there they could prosecute TFG, but this ain’t it.
The problem with prosecuting Donny for his attempted coup is that a significant number of Americans really believe that it wasn’t a coup, but an attempt to retake what was rightfully his, and by proxy, theirs. And I think Trump’s supporters’ (false) sense of ownership for his presidency, goes a long way to explain their loyalty toward him as well as their reluctance to believe that he lost the election. Get one of those people on a jury, and he’ll walk.
This happened when they prosecuted Manafort. There were some trump supporters who were convinced of his guilt, but one lone trump partisan blocked a conviction on many of the counts.
https://www.politico.com/story/2018/08/23/paul-manafort-trial-jury-lone-holdout-794814
To successfully prosecute Trump, the case would have to have be clear and easy to understand (so, no financial crimes because they’re too complex); the evidence would have to be overwhelming; and I think something would have to happen to break that idea that Trump was “their guy”. (As an aside, this is what the democrats should have been hammering on for the entire term of his presidency, but they did it sporadically and not forcefully enough. But they’re democrats, so this is par for the course, unfortunately.)
While I think there is the possibility of such a case, I have little to no hopes of this happening, and definitely not related to his attempted coup, at least not yet.
@Mike in Arlington:
You: “…I think something would have to happen to break the idea that Trump is ‘their guy’.”
Absolutely. This above all. But I can’t see it happening.
@Stormy Dragon: Yes it matters, a childish and myopic question. Purity ponyism so adored by the ideological is simplistic black and white / either or thinking, which ignores ranges of outcomes.
Prosecutors avoid rationally losses undermining future ability to prosecute in better circumstances. Just as a good general avoids throwing troops into a futile assault just to prove Élan or because some emotational bleating about it “has to be done” to prove something.
Not taking an action leaves the potential for the future, taking and action and losing forecloses.
The fact that the criminal charges of Leftist fantasy are unlikely to play out does not render an overall system ineffective. It merely highlights emotional fantasies are just fantasies. There are other paths, such as civil suits to break him. Civil suits are more likely to succeed and undermines.
Picking battles and maximising victories and minimising losses is not cowardice, it is rational and needed.
@Michael Reynolds: Because you love polemics and grand gestures.
The only way to convict TFG for his actions on 1/6 is if there will be testimony from at least one, but better two people who were in the room when he gave the instructions. Even then, a wayward juror is likely and a mistrial would be declared. I’d like the orange man in an orange jumpsuit, as much as anyone here, but it won’t happen.
Complaining about different rules for the rich and powerful can begin sounding like a kid complaining that something isn’t fair.
@Lounsbury:
So now wanting people of flagrantly commit felonies to be prosecuted make you a “purity pony”? Very well. I’d rather be a purity pony than a collaborator nag.
If it were one crime with one charge, or a string of related charges, and one trial, maybe then there’s nothing that can be done.
Is it?
Given Benito’s proclivities, there are likely several crimes, requiring several trials. Keep going after him until one sticks, and in the meantime he’ll spend a lot of time in court and lawyer’s offices.
It’s also likely he may be liable for offenses overseas, say in the UK. That should be explored, and if need be, Benito should be extradited.
Effectively saying the president, or trump, is above the law, gives license to future occupants of the oval office to engage in far more serious crimes. Like sending troops to quell “riots” of actual mostly peaceful protesters. And if the Army or National Guard won’t do it, nothing prevents a future chief executive from raising his own private shock troops among the cosplay brigades. Rittenhouse proved a coward with a gun is very dangerous.
@Lounsbury:
Let me ask you something as a hard-nosed realist. Had Churchill consulted you in 1939, would you have told him to give the beaches speech, that grand polemic? Or find accommodation with Hitler? Because all the smart money was on Hitler.
Sometimes you have to do the right thing and say fuck the odds. Because if we were all hard-nosed realists we’d still be walking around the African savannah looking for carrion.
There’s also opportunity cost (although this applies more at the state and local level). If fully prosecuting Trump costs the DOJ $50M, what else could that $50M have been spent on? Despite what people like to think, most parts of the federal government have constraints on budgets and staff that they have to stay within. If I have to choose between $50M to prosecute Trump, or $50M to defend voting rights in five states, I’ll pick the voting rights work every time.
@Michael Cain: “If I have to choose between $50M to prosecute Trump, or $50M to defend voting rights in five states, I’ll pick the voting rights work every time.”
And then when Trump leads the Republicans to victory — having proved that he never committed any crimes because even Biden’s Justice Department couldn’t make anything stick — they will wipe out voting rights in those five states and every other one.
@Kathy:
That. Policing works because a perp has to win every time, the cops only have to win once. As I see it the problem is twofold.
First, the Constitution Police aren’t coming. Without them, whose job is it to protect democracy? Everyone who might seems to be hoping someone else will. And if a NY prosecutor isn’t feeling enough political pressure to prosecute, I’m not holding out a lot of hope for GA.
Second, this is like the millionth example of how screwed up our legal system is. What we’re talking about here is jury nullification. Which happens with some regularity. J. K. Galbraith had a rule to the effect that institutions evolve to serve the interests of whoever controls the institution. I fear juries mostly serve to divorce judges and lawyers from responsibility.
In related news, a judge, contra ten of his colleagues, has ruled a 1/6 defendant can’t be charged with “corruptly obstructing an official proceeding”. The judges differ on the meaning of “otherwise” in the relevant statute. People up to and including the then President of the United States tried, in some cases violently, to overturn an election and we don’t seem to have laws to deal with it. Or even be able to agree, after 200 years of legal interpretation, what the marginally relevant laws even mean. To coin a phrase, the law is a ass.
I think Stern’s idea is interesting, but my money is on getting to “f**k no, we ain’t doin’ this” way before any such considerations enter the calculation. From that standpoint, the years long SDNY investigation of FG may well just have been performance art and the other current investigations by NY state are simply unfinished performance pieces.