2 ways Democratic prosecutors could be botching the Trump indictments

It’s a strange thing about politics. Even when a rational, maximizing strategy is blindingly obvious, supposedly smart people do incomprehensible things. In the case of everyone vs. Donald Trump, the prosecutors are making serious mistakes that could boomerang on them and bolster Trump.

Like it or not, prosecuting a former president who is currently running for president brings politics into the equation. That’s just reality. Nobody is really treated equally before the law. In most cases, unequal treatment is a pedestrian matter of who can afford a good attorney. In the case of the famous — or the infamous — unequal treatment vacillates between prosecutors wanting to make an example of someone (Martha Stewart springs to mind) and prosecutors intimidated by the defendant (Hunter Biden, anyone?).

For Trump, the unequal treatment is much more complex, as his position and alleged crimes are unique in American history. But the bottom line is that failing to take Trump’s context into account is just plain foolish — it has the potential to create long-term legitimacy problems for the Justice Department and could even boost Trump back into office.

Equal treatment under the law for Trump

In earlier columns in The Hill, I assumed any federal or state indictment would be fatal for Trump. Not because of the trial itself, but because no prosecutor could possibly risk an acquittal. Thus, any charges would be a slam-dunk. There would be little room for Trump to declare any victory, and only the most fervent MAGAs would hang on.

Instead, both Jack Smith and Fani Willis appear to be treating their respective prosecutions like any other criminal trial: throw every charge you can at the target(s) and figure some of them have to stick. Including the Alvin Bragg indictment, Trump is facing 91 criminal counts.

Sarah Isgur, an attorney writing for The Dispatch, and The Hill analyst Niall Stanage (along with others) agree on the rank-order of each indictment with respect to the risk for Trump. The charges that the ex-president absconded with classified documents presents the greatest legal danger — tacitly acknowledged by Trump, considering his comparative silence on the case.

The next greatest danger is the Willis case, considering Georgia’s broad laws and roadblocks to a pardon. But not all the 18 counts are strong. It would be far better to go seven for seven than, say, 10 for 18 on verdicts. Any mixed result muddies the waters. If Willis loses on any major count, the prosecution loses legitimacy.

Smith’s January 6 indictment, according to Isgur, relies on “vague statutes and applying them in novel ways.” Both Stanage and Isgur conclude that figuring out Trump’s mental state is critical. If thinking, “What’s in it for me?” 24/7 is a crime, then Trump is finished. But proving something more nuanced like whether Trump knew he lost or anticipated violence is a whole other matter.

A mixed verdict would be a mess, but even more divisive would be mostly guilty, followed by Trump losing in 2024, followed by a successful appeal by Trump on any serious charge —particularly if any Democratic-appointed judge sides with Trump.

A final decision by the Supreme Court could be very bad. If you accept that a liberal ideological bent is associated with defendants’ rights, then the three Democratic justices could be favorable to Trump. With a twice-defeated, soon-to-turn-80-year-old Trump far less of a threat to return to the White House, the liberal justices could feel much less pressure to vote against Trump. Additionally, recent Supreme Court decisions have not automatically broken along ideological lines.

If Trump wins his appeal with a Democrat or two voting with him (or even unanimously), the standing of the Justice Department would be wrecked with Trump voters and severely damaged with the ideological middle. Justices could well not want to see an expansion of the ability to prosecute individuals engaged in political speech no matter how incendiary. Nor might they be interested in plowing new ground that aggressive prosecutors could till in races from president to dogcatcher.

As for Bragg, he essentially admitted how flimsy his case is by quickly deferring to federal prosecutors. That was likely Bragg’s game all along: indict first, prosecute last. Bragg cannot afford to hand Trump an acquittal or mistrial. His top priority now is to get to the end of the line and stay there. My bet is Bragg will pull the charges if Trump is found guilty by Smith or Willis, figuring the bloodlust will have been sated and he can look sensible, statesmanlike and magnanimous.

Hunter Biden’s (un)equal treatment

Attorney General Merrick Garland and the Department of Justice (DOJ) blew a big opportunity to legitimize themselves and insulate the Trump prosecution from attacks by failing to vigorously prosecute Hunter Biden. The younger Biden’s dissolute life and incorrigibility presented just that golden opportunity by violating gun laws and evading taxes.

Gun crimes and tax evasion are the perfect crimes for any Democratic prosecutor to pursue. They are uncontroversial and even coveted by liberal prosecutors. Yet, Garland crumbled. The DOJ offered Hunter Biden a get-out-of-jail-practically-free plea deal so egregiously concessionary that the presiding judge tossed it out.

While the fact is that Trump is accused of far more serious crimes, young Biden committed particularly heinous sins in the current Democratic catechism. Failing to pay more than $1 million in taxes puts him in the much-loathed top 1 percent of Americans. And any violation of federal gun laws, considered far too lax by Democrats, is another deadly sin.

Democratic sanctimony over the rule of law and the principle that no one is above the law ring very hollow when DOJ tries to let the president’s son skate, let alone escape charges on crimes that would leave Democrats braying for prison time for anyone else.

All in all, the Trump prosecutions are headed for a messy, divisive conclusion. Smith and Willis are taking significant risks by robotically pursuing the same old prosecutorial playbook. Meanwhile Bragg is praying that his fellow prosecutors do his work for him. Fortunately for them, they are facing Donald Trump, a man who seems hell-bent on exploring new ways of self-incrimination. Between Trump’s inability to keep his legal team together and his unhinged antics, he could very well bail out his enemies and put himself behind bars with little doubt.

Keith Naughton, Ph.D., is co-founder of Silent Majority Strategies, a public and regulatory affairs consulting firm. Naughton is a former Pennsylvania political campaign consultant. Follow him on Twitter @KNaughton711.