By Steve BermanThe “presumed innocent” chorus has begun with the latest set of indictments against former President Donald Trump. Sure, it goes, the guy lies, steals, cheats, and members of his former senior appointees have called him everything from a “f**king moron” to “racist, misogynist and bigot;” BUT, that’s doesn’t make it illegal.
Puh-leeeze! Stop with the crimewashing. In fact, I think many of those who offer this kind of analysis, knowing the character of the man they’re talking about, might secret their own dark wishes to have an American strongman, like Hungary’s Viktor Orbán, or Canada’s Justin Trudeau, or Emmanuel Macron, the liberal strongman of France.
The era of the strongman, where liberal democracies faced with COVID-19, slammed into authoritarian overdrive, pumped the hearts of Trumpists, while the orange man himself acted like a wet noodle on stage day after day. Trump even criticized Georgia Gov. Brian Kemp for opening the state too soon. Trump is no strongman, but he wants to make himself into one.
The best way to become a strongman is to defeat the enemy on their own ground: to conquer. Trump is looking to conquer the legal system of the United States, at every level. A Boston Globe analysis published Wednesday posited exactly that, quoting former Trump White House attorney Ty Cobb.
“He has no intention of proving his innocence because he has no defenses, and I’m sure his lawyers have explained that to him,” Ty Cobb, former White House attorney during Robert Mueller’s probe into Trump, said. “I think his plan is to get elected and then, yes, of course, the first thing he’ll do is cover himself in immunity and pardon anyone who goes down with him.”
Trump wants to delay his trials, get to Election Day, and win. He has a non-zero chance of pulling it off. If he does, it’s going to be strongman all the way down. Now if that’s what you want—an American Erdoğan, or an ersatz Netanyahu (at least the Israeli PM doesn’t steal his elections)—then just say it. If the fascist shoe fits, put it on, and kick yourself in the head with it.
Playing the “presumed innocent” card on Trump is both dangerous and legally insane. It ignores a key legal principle of mens rea, literally “guilty mind.” Let’s look at the facts here, the ones that are not really in dispute.
- Trump’s lawyers don’t really believe the 2020 election was “stolen” by illegal ballot stuffing. They’d be disbarred for saying they believe that, if they said it in court.
- Trump can’t admit under oath he believes the 2020 election was stolen, because it will open him up to questions he can’t answer.
- Trump knew the crowd on January 6th would be coming and want to get fired up.
- Trump read the Eastman memo and had a plan for throwing the election in the House of Representatives, illegally so.
- Trump tried to strong arm Georgia Secretary of State Brad Raffensperger into throwing the Georgia election results into question, and then Gov. Brian Kemp into illegally convening the state’s legislature to recall the electors.
- Trump took classified documents and hid them, daring the government to prosecute him for it (and they have).
All of these facts show that Trump has summoned the full weight of the legal system onto his own head. Why would he do this? So his presumption of innocence could be maintained until the election, and in the meantime, he can claim that the prosecutions are political in nature, after all, he’s the Republican frontrunner, and will continue to be unless or until he’s convicted, sentenced, and serving his time.
Trump’s mindset through all of this is to commit criminal acts and dare the legal system to come and get him. He wants to make himself Leonidas, telling the authorities “Molon labe”—come and take them. (A decent analogy, since Xerxes did exactly that.) But playing his crowd as the “300” is politically blood-stirring, and it works.
Politics does not give anyone the right to claim “presumed innocent” over a man whose mens rea was obviously to commit an auto-coup and retain power illegally. His mindset right now is to defeat the very legal system that seeks to hold him accountable for that series of treasonous acts.
Following on the heels of the federal indictment, Fulton County DA Fani Willis is about to let fly more indictments. She previously indicated that these would be released sometime in the first half of August. Now, with the senior judges attending a conference, Willis ordered her staff to work remotely. No in-person proceedings are being conducted at the Fulton County Courthouse, across the street from the gold-domed State House, and adjacent to Atlanta City Hall. Orange barriers have gone up on the streets. The indictments are coming.
Trump could be charged under Georgia’s racketeering statute. He has hired a very accomplished (and expensive) legal representation in Georgia, who have tried to stymie Willis’ investigation, but failed. His strategy is to delay, deceive, and foment chaos while he continues to lead in the polls.
Crimewashing Trump as a “presumed innocent” defendant in all these cases simply plays into his game, and enhances his strategy. I am the first to admit that we shouldn’t be here as a nation. The Senate had a chance to fix this back in early 2021, but didn’t. The GOP acted like proverbial ostriches, heads deeply buried in the sand. The other contenders were scared of Trump’s political goons and supporters, so they played word games.
Now we’re left with the legal system itself, and if Trump defeats it, he will be the strongman he’s aspired to be since he stood on the podium that cold January day in 2017. Don’t crimewash Trump. If he did the crime, he has to do the time.
Follow Steve on Twitter @stevengberman.
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