Much has been made of Donald Trump’s waning political fortunes, but his sinking polls and political status in the Republican Party may cost him more than another shot at the presidency — it could help put him behind bars.
Trump is subject to multiple investigations, including his having carted off classified documents, allegedly attempted vote fraud in Georgia, unspecified malfeasance connected with the Jan. 6 riot and potential tax evasion. However, the hurdles from investigation to indictment and then to conviction are quite steep. And Trump has shown a facility for wriggling out of trouble or settling.
But Trump is no longer just another obnoxious New Yorker. His profile, influence and the enemies he has made have complicated any legal proceeding. Whether and how to prosecute Trump has become a political process. For that reason, determining the legal end-game is not simply about evidence and due process.
No deals for Trump
Everyone hates trials, which is one of the reasons there are so many plea bargains. Prosecutors don’t like the risk of an acquittal. Defense attorneys don’t like the risk of a conviction. Jurors want to go home. Taxpayers resent the expense. And judges would rather rubber-stamp a deal and move to the next case. But in the case of Trump, there almost certainly won’t be a deal.
Politically, no Democratic prosecutor could offer a deal that doesn’t include jail time. For all the talk of a GOP cult around Trump, the fact is Democrats despise Trump more than Republicans like him. The unfavorable rating for Trump among Democrats is 85 percent as opposed to a 72 percent favorable rating among Republicans — but the intensity is much higher for Democrats at 75 percent “very” unfavorable (10 percent “somewhat” unfavorable), while only 41 percent of Republicans have a “very” favorable opinion of Trump. With liberals, it’s worse at 78 percent “very” unfavorable (37 percent “very” favorable for conservatives).
Proposing a plea deal that allows Trump to stay out of jail is a non-starter with the Democratic base. As for Trump, it is very difficult to imagine he would willingly accept an involuntary vacation in Leavenworth, Kansas. So, any indictment would likely be headed for trial.
Case must be substantial
“Beyond a reasonable doubt” is a high standard. Police officers and prosecutors see guilty people walk free all the time. Prosecuting Trump would be even tougher, as an acquittal would be a political disaster. No Democratic prosecutor could live down being the one who let Trump get off the hook. And even with Trump’s falling poll numbers, it is conceivable he could ride a failed prosecution back to the White House — an even bigger nightmare for Democrats.
Prosecuting a former president is a serious endeavor, and the case needs to be substantial. There is zero doubt that Bill Clinton committed perjury while in office — but it was lying in the course of an investigation that looked like a fishing expedition and regarding an “activity” unrelated to the duties of the president. In the end, even impeachment was unpopular, as the public did not view Clinton’s felony as significant enough to merit removal from office.
Similarly with Trump, walking off with a carton or three of classified documents is improper and potentially criminal, but not likely to be viewed as a capital offense by most of the American public. The same can be said for errors on Trump’s tax returns.
In short, any crime where the penalties are generally probation or fines is not enough. Prison-time felonies are what count.
Fortunately for prosecutors, it’s not a long trip from an administrative violation to multiple felonies. Talk to someone about breaking the law? It’s conspiracy. Hide or destroy evidence? Obstruction of justice. Lie? Perjury. That’s three felonies in short order. And given how Trump has been out of control, careless and unwilling to take advice, the odds that he has piled up a few felonies are not unsubstantial.
Polls factor in political calculus
Given the political ramifications of a Trump acquittal, any prosecutor — whether at the Department of Justice, in New York State or Fulton County, Ga. — is going to want to be 99-percent certain of a conviction.
But even at a very high level of confidence, prosecutors might still be reluctant to prosecute someone who might soon be a major-party nominee for president — which is why Trump’s collapsing poll numbers with Republicans are such a disaster for him.
Over the past year, Trump has steadily lost ground with GOP voters. He has fallen below 50 percent in national Republican primary ballot tests and lags Florida Gov. Ron DeSantis by 5 points in the latest Yahoo News poll. DeSantis also leads in several state primary polls (Note: many of these polls have small sample sizes.)
In addition, Republican VIPs are increasingly, if slowly, abandoning ship, which would mute criticism of an indictment or make such criticism brief and perfunctory. Plenty of Republicans would welcome Trump’s removal. Certainly, any Republican presidential hopeful not named DeSantis needs Trump out of the race to have any chance.
Put together, prosecutors may not be dealing with a Nixon-like comeback but a Pat Paulsen joke. Thus, it becomes a lot easier to target Trump.
Machiavellian Democrats observing the implosion of Trump cannot be happy that their best hope for reelecting President Biden is evaporating. Propping up Trump is starting to look like a lost cause. As a result, some may be thinking the Justice Department might as well charge him and give the Democratic base and anti-Trump media what they crave.
Everything is set up politically for a Trump indictment.
Uncertainty among the constellation of investigators and prosecutors is limited to the quality of the evidence and charges: Any uncertainty, and there won’t be an indictment.
The bottom line is: If prosecutors go ahead with an indictment in 2023, it very likely would be a slam-dunk case.
Now or later?
No indictment within the year probably does not leave Trump in the clear. Prosecutors would simply have to wait until after the 2024 election to make their next move. If a Republican is elected, they will likely charge Trump on what they are most confident about, leaving Republicans with a mess to start the new administration. If a Democrat wins, prosecutors are likely to throw everything from felonies to unpaid parking tickets at Trump. He won’t be a political factor anymore, and a few misses won’t mean much.
Richard Nixon famously told David Frost, “I gave them a sword. And they stuck it in, and they twisted it with relish.”
Trump possesses no such ability for introspection (nor even a fraction of Nixon’s intelligence, for that matter). But if Trump ends up incarcerated, he will — like Nixon — have only himself to blame.
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.