The Doubts Were Not Reasonable

Welcome to Margin of Error, a politics column from Tom Scocca, editor of the Indignity newsletter, examining the apocalyptic politics and coverage of Campaign 2024.

Donald Trump committed crimes and a jury found him guilty. He was convicted on all counts Thursday, without much hesitation. 

“The only voice that matters is the voice of the jury,” Manhattan District Attorney Alvin Bragg said afterward, “and the jury has spoken.” 

For the past eight years, a lot of essentially simple truths were treated as matters of paralyzing complexity. A man who ran his entire business empire on fraud, systematically cheated on his taxes, committed sexual assault, and conspired with his henchmen to obstruct justice had made himself into a presidential candidate, and then a president, and then an ex-president, and that second set of facts was somehow supposed to change the original, underlying facts. Presidents didn’t do those sorts of things. Or, if a president did do those things, it certainly couldn’t count—that would mean the president of the United States was a criminal, and that would mean … well, it just couldn’t

A little over a year ago, as Bragg prepared and delivered his indictment of Trump, there was a swift, broad agreement among people who comment on politics, Democratic- and Republican-aligned alike, that something terrible, foolhardy—distasteful—was happening. Even the people who professed to believe Trump was a criminal and wanted him held accountable for something were put out. 

Bragg had, as the truculent liberal New York magazine pundit Jonathan Chait wrote, wandered into the danger of “the criminalization of politics.” Piously shifty New York Times conservative columnist Ross Douthat wrote that Bragg was filing “doubtful charges” that could “establish a pattern of legal revenge seeking against the out-of-power party.” 

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The Washington Post editorial board fretted that the charges might be “shaky” and that the New York indictment was “perhaps the least compelling” of the cases against Trump. With other prosecutors pursuing more “straightforward” charges against Trump, the board warned, a “failed prosecution over the hush-money payment could put them all in jeopardy.” 

“I hate the fact that this particular case is the one they’re throwing against him,” Douthat’s conservative teammate Bret Stephens wrote in one of his light-lifting Odd Couple chat-columns with Gail Collins. “The case in Georgia is so much stronger.”

The first prong of that style of complaint depended on a nonexistent “they”—some unified anti-Trump law-enforcement conspiracy that chose to have the Manhattan district attorney file charges for the New York state crimes Trump had committed, out of all the available crimes in all the available jurisdictions. But if Bragg’s indictment did have any relation to other prosecutors’ decision-making, the effect seemed to be that it shook loose their indictments, not that it preempted them. 

It was the second part of the complaint, though, where the pundit chorus truly found its voice. Because the politics of the indictment were so uncomfortable, emotional logic demanded that there must also have been something wrong with it legally. Instantly, everyone was an expert on the details of how the New York criminal code applied to business activity. 

“To imagine this particular combination of campaign-finance charges and business-records enforcement as simply ‘the law’ is wildly naïve,” Chait wrote. “Prosecutors have some cases that clearly constitute crimes (say, tax fraud), others that clearly do not constitute crimes, and a nebulous middle ground in which judgment is required.”

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In a situation that demanded “clear evidence, all-but-obvious guilt and loads of legal precedent behind your case,” Douthat wrote, the New York case “does not have the look of a slam dunk.”

“The way I read it, Trump is goading Bragg to indict,” Stephens wrote in another of his Collins chats. “It would be an exceptionally weak case, resting on what is ordinarily a misdemeanor offense.”

None of these people knew what they were talking about. They were holding forth with assurance, in tones of authority, about matters on which they were completely, professionally ignorant. Nor was the ignorance restricted to full-time journalists. Law professor Jed Handelsman Shugerman declared in a Times opinion piece that the indictment “was a setback for the rule of law and established a dangerous precedent for prosecutors” and predicted that the case was “so weak on its legal and jurisdictional basis that a state judge might dismiss the case and mitigate that damage,” or that Trump could mount federal challenges so that a trial “would most likely not start until at least mid-2024, possibly even after the 2024 election.”

While the opinion-havers were indulging themselves in mythology or fantasy—Trump as the embodiment of the will of the people, whose wrathful political power would only grow if challenged by law, or Trump as the highest of criminals, who must be punished by the highest of authorities—Bragg was putting together the documents and witnesses that would sustain 34 felony counts in a Manhattan courtroom. While the prosecutors with weightier, more historic-sounding charges were getting bogged down in their timelines and stymied by Trump’s judiciary, the squalid little hush-money case kept moving. 

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Donald Trump’s political career has been one long demonstration that the legal structures that were supposed to be the bedrock of the rule of law are worthless. Impeachment was no match for a cynically disciplined political party. The Emoluments Clause and the Insurrection Clause are words on paper that the Supreme Court chose not to read. Even a well-tested prosecution machine like the Espionage Act is nothing that a determined judge can’t rig her way around. 

What caught up with Donald Trump was not the majesty of the republic but a civil suit for sexually assaulting someone in a department-store changing room and lying about it, and another civil suit for cooking the books on his property assessments, and now the criminal charges for covering up his hush-money payments. He is, as a matter of legal record, a rapist, a fraud, and a felon, on the edge of financial ruin and at risk of imprisonment. He might yet return to the White House, but he’ll go there as a convicted crook.

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