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Friday, May 31, 2024

How Many Americans Will Rationalize Voting for a Felon?

How Many Americans Will Rationalize Voting for a Felon?

“Three Opinion writers on the Donald Trump hush-money verdict.

With Lydia Polgreen in South Africa covering its elections, Ross Douthat out on parental leave and Michelle Cottle reporting from a saloon in Colorado, Carlos Lozada turns the “Matter of Opinion” mic over to his Times Opinion colleagues to respond to the news about Donald Trump’s guilty verdict in the New York hush-money trial.

The columnists Michelle Goldberg and David French — who calls himself “a recovering litigator” — join the deputy Opinion editor, Patrick Healy, to discuss Trump’s 34 guilty counts and debate what they mean for the former president, whether he’ll face prison time and how it will affect the 2024 presidential race.

Below is a lightly edited transcript of their conversation. To listen to this episode, click the play button below.

How Many Americans Will Rationalize Voting for a Felon?

Three Opinion writers on the Donald Trump hush-money verdict.

Patrick Healy: Donald Trump has been found guilty on all 34 felony counts of falsifying business records in the hush-money case. There’s really no other word but “historic” for this moment. And we’re in uncharted waters, in terms of the political implications of Trump’s conviction and what it’ll mean for the presidential race, for American unity and for the future.

Guys, we’re recording this just two hours after the verdict was delivered. In one word, how are you both feeling?

Michelle Goldberg: Thrilled.

David French: Unsurprised.

Healy: Oh, David, you took my word. [Laughter] OK, we’re going to have to arm-wrestle, but Michelle, you go first. Why “thrilled”?

Goldberg: So it’s not that I think that this is going to finally put an end to Donald Trump or even change the trajectory of the election all that much. But I do think that if there had been a hung jury or an acquittal, it would have been really good for Trump and it would have given him even more wind at his back going into the election.

Whereas this is, I think, a reminder that Trump’s aura of invincibility can be pierced. That he loses in court again and again and again. The fact that our political system has proved so unequal to restraining his rampant criminality has, I think, given people a feeling of hopelessness. And I hope that this verdict punctures that a little bit, because when he’s judged the way other people are judged, again and again, people, juries, judges see through his misdoings.

Healy: It’s so true. The institutions really have held up. David, why “surprised”?

French: “Unsurprised.”

Healy: “Unsurprised.” I apologize. We’re really going to arm-wrestle, then. [Laughter]

French: Well, I’m not surprised because the strength of this case was in the facts of the case, and that’s what a jury decides. A jury decides the facts. The judge decides the law. The court of appeals decides if the legal posture of the case was correct. But the jury addresses the facts. And the facts here are stronger than we knew they were going into the trial.

Going into the trial, I thought that the evidence that Donald Trump falsified business records and that he falsified business records with the consciousness of guilt surrounding the entire hush-money process. I thought the prosecution could make that stick. Then during the trial itself, the facts of the case were stronger than I believed before.

One of the things that I thought was particularly important in the case was actually the Stormy Daniels testimony. What the Stormy Daniels testimony did is it showed clearly and unequivocally why he would want to pay hush money, because she had a terrible story to tell.

And at that time in the campaign when she came forward, right after the “Access Hollywood” tape dropped, and said: I’ve got a story to tell — it was critical for him to suppress as much as he could.

So the prosecution had a very compelling story to tell, which was: He was going to bury this, and he was going to spend a lot of money to bury it, and he knew there was something about it that was wrong. That’s why it was concealed. That’s why the payments were mislabeled. And so nothing about the verdict actually surprises me.

Goldberg: I was in the courtroom for a couple of days, including for closing arguments, and what struck me is that the discourse around the case has been sort of meta: Should Alvin Bragg have brought it? What will conviction mean to the election? But in the courtroom, it was: Did Donald Trump do these things that he’s accused of? And it was so obvious that he did.

And even though lawyers I spoke to thought that Donald Trump’s defense attorney did OK with what he had, from where I sit, his arguments just seemed so ludicrous. He can’t argue in court that Donald Trump is being unfairly persecuted for something that other people get away with. So instead, he’s arguing that Donald Trump never had sex with that woman, kind of echoing Bill Clinton.

Then he is arguing that the $420,000 that Michael Cohen was paid to reimburse him for paying off Stormy Daniels was a legitimate legal fee based on a handshake or verbal retainer agreement that they had for Cohen to act as his personal lawyer. It was preposterous.

The other thing that they argued, which also I thought was ridiculous, was that — David’s talking about how important the “Access Hollywood” tape is in understanding the kind of chronology and motivations — one of the things that Donald Trump’s defense attorney tried to argue was that the “Access Hollywood” tape actually didn’t matter that much. That it was a bad day and there was going to be a few days of aggravation but that people were exaggerating and thinking that this was a major moment in the campaign — which is just, if you lived through it, that’s ridiculous.

French: I think, Michelle, the precise legal word for that argument is “bonkers.” [Laughter]

It’s just wild. We all remember it. This was the biggest story in America, and this was the first time that you began to see Republicans fleeing the campaign after the convention. After the Republicans consolidated at the convention, you began to see cracks in the facade after the “Access Hollywood” tape.

That was a nine-alarm fire. That was an emergency for the campaign.

Healy: And yet he held it together. And that goes to why I felt surprised by this. It touches on things that you two have both raised now. While our institutions have often held up, where —

Goldberg: Well, I think our legal institutions —

Healy: Our legal institutions have held up. That’s the thing — the ability of Donald Trump and his team to have a playbook for almost any situation where at the end of the day, even if reputations are scarred and people are thrown under the bus, he is still able to evade accountability. I only really saw that in the 2020 election, ultimately at the ballot box.

And I’ve just found myself thinking, and maybe it’s a little jaded, but you get 12 jurors in a room, hearing the evidence, that there may be just one or two that see a former president in the dock and want such clear, smoking-gun-level, “Law & Order” drama that just really kind of nails him —

Goldberg: But they had it.

Healy: They had it, but they —

Goldberg: They had smoking — I mean they —

Healy: But they didn’t literally have Donald Trump saying a version of what he said in Georgia, which was, you know: Find me the umpteen thousand votes I need to get —

Goldberg: But they had tapes with him and Michael Cohen talking about the payment to Stormy Daniels. A lot of people were worried — and I was worried — that there was one juror that was sort of in the tank for Trump.

The Trump campaign was floating this theory that one Trump juror kept making meaningful eye contact with them, that they were lighting up when J.D. Vance came into the room. So I certainly worried about that, but in terms of the evidence, it was just so incredibly open-and-shut.

A photo illustration of Donald Trump, looking down, as if in a photograph on a newspaper page, with one edge folded over, showing text on the other side.
Illustration by The New York Times; photograph by Justin Lane/EPA, via Shutterstock

Healy: Let me ask you, Michelle: Who do you think was the key witness, in your opinion, looking back on it, that got to conviction on all the charges?

Goldberg: Oh, God, that’s really hard. I mean, I think that Hope Hicks was really important because she obviously wasn’t trying to throw Donald Trump under the bus and actually burst into tears. But she also blew up the whole story, again, that the “Access Hollywood” tape wasn’t a big deal.

Healy: Yep. David, what about you?

French: You know, I think of a number of people. I think when early in the trial, when they set up the catch-and-kill process and sort of showed how all of that works, I think that was very important. It’s a very simple and easy-to-understand way of explaining how he suppressed negative information. And one of the things you learn in a jury trial is the side that can tell the most compelling and easy-to-understand story has an immense advantage. And the prosecution here had a real advantage because they had a very compelling story, which was: To save his campaign, he was going to pay hush money, and as part of paying hush money, he had to conceal it. The hush applied in all directions.

He was concealing it from the public. He was even disguising the payments internally. All of this was designed to save this campaign that was in a point of crisis and floundering. That’s an elevator pitch. That’s a quick statement of the case.

And then they proceeded to, in detail, provide the substantiation. That’s not to say that the case was necessarily a complete slam-dunk. There were factual elements that the defense could have made more hay on, but I’m not necessarily convinced that the defense was tainted, in my view, too much by keeping one eye on the politics of the case.

Goldberg: Well, the defense had to burn a lot of their credibility — or I don’t know about a lot of their credibility, but the defense had to burn some of their credibility — insisting that this affair never happened.

Healy: Right.

Goldberg: Or actually calling it an affair is an overstatement but insisting that the sex never happened.

Healy: David, I want to ask you: This is guilty on all 34 felony counts, not just a few but all 34 counts. How significant is that?

French: Well, it’s very significant in two directions. First, this is about as thorough a drubbing that you’re going to see a prosecution inflict on a defense at trial. A conviction on all counts is quite significant independently.

The other thing, though, that is very significant is you have this conviction on all counts against a backdrop where Trump has been repeatedly held in contempt during the course of this trial, he demonstrates, at least so far, zero remorse at all.

So when you’re talking about sentencing and what sentencing will look like, you’ll have a verdict on all counts, a defendant who shows zero remorse and a defendant who’s been held in contempt multiple times during the criminal proceeding.

Now in normal cases, that tends to mean that sentencing gets more draconian because judges are looking for contrition. They are looking for cooperation. They are looking for some reason to mitigate the sentence.

Healy: Not this guy, David. [Laughter]

French: Not this guy. In this case, the most mitigating factor is, of course, this is his first conviction of a nonviolent felony. And you don’t typically get jail time in that circumstance, or you don’t typically get hit with the harder-edge sentence. In this case, the first-time nonviolent felony is balanced against 34 counts, no remorse, multiple acts of contempt.

And so it’s going to be very interesting to see how the judge resolves this and sentencing in July.

Healy: Yeah, let’s just clear that up right now, because you two are the best in the business with predictions. [Laughter]

Is Trump going to jail, Michelle? Is Trump — in terms of that sentence and it’s a first conviction, but there’s no contrition — is he going to go to jail?

Goldberg: So I’m not going to hazard a guess as to whether or not he goes to jail for this.

I think the question of whether or not Donald Trump ultimately goes to jail is one of the central issues in this election. If he loses, I think he goes to jail on something, right?

This was the least serious of the felony trials that await him. Some of those have been postponed through the machinations of his various lackeys on the Supreme Court and on other courts, but they’re going to happen eventually.

And I think that this, again, is a shot in the arm. It’s a reminder to people that this can happen.

But if Donald Trump is elected, even if he gets sentenced to jail in July, he appeals, right? And presumably he’s on bail pending appeal, and this stretches past the election. And then you kind of have this question of Donald Trump in office, with the jail sentence on the other side and already a disinclination to leave.

He’s already started talking, kind of kidding, not kidding, about serving three terms. But for those of us who are worried that Donald Trump becomes president again, he is not going to leave the White House voluntarily while he’s still alive. I think that the prospect of a jail sentence on the other end heightens that concern.

Healy: Michelle, you have my head spinning in these scenarios. [Laughter] But I think you’re absolutely right about all of them.

David, the jury came back in just two days, a relatively quick return, and as I said, guilty on all counts.

And I’m thinking about Michelle’s point just about jail time sooner rather than later. I am wondering if this judge in sentencing in July looks at that quick verdict, that absolute certainty verdict and does come back with some jail time. What do you think? And does the timing affect it at all? Or is that just apples and oranges?

French: Even though Trump has not been remorseful, even though Trump was cited multiple times for contempt, I’m still of the view that it’s a stretch that he’ll serve time in prison because of that first-time nonviolent felony status.

I’m much less confident of that than I was three weeks ago, four weeks ago.

Three or four weeks ago, I would have said: No, Patrick, no way he’s going to serve time in jail. Now I’m not as sure. I would still be surprised. But what I would also say is — Michelle hit on something very important — there’s an appeal coming here, and so this case is not over.

There is going to be an appeal, and the appeal will be fought on the grounds where the prosecution is weakest, and the prosecution is weakest when it comes to the underlying legal theory.

Healy: Michelle, you attended the trial, and you wrote about how a lot of Americans are really kind of tuning out the proceedings. I’m very interested in the impact that this verdict is going to have, particularly on swing voters, just in the weeks and months to come.

As we sit here now, it’s a historic result. But what kinds of impact do you think the verdict might have on certain voters, on the election?

Goldberg: So, look, obviously I think most voters are locked in, and I don’t believe those surveys in which 15, 17 percent of voters say that a conviction will change their minds. I think most of them will be able to rationalize voting for a felon.

But our elections tend to be extremely close. And so it doesn’t have to change that many people’s minds for it to have a big impact.

I think a lot of people, for example, in 2016, think that James Comey reopening the case against Hillary Clinton was something that was decisive in that election. Even though, you think about, “Who are the people who were going to vote for Hillary Clinton and then that changed their mind?”

Inasmuch as there’s a tipping point of scandal and inasmuch as people think, “Well, this is just going to be too chaotic to have a president who might be in jail or who’s running to keep himself out of jail.” Again, it doesn’t have to change that many minds for it to be really important.

And then the other thing I’d say is that part of the impact could be precisely because people haven’t been paying a lot of attention. The New York Times/Siena poll of swing voters showed that most of them did not expect him to be convicted — large numbers of Republicans but also independents and even pretty significant numbers of Democrats.

So the fact that he was convicted is going to be jarring for some people and, again, may cause at least a few of them to rethink some of their priors.

Healy: It’s such an important point, Michelle. Throughout the primaries, last year and into this year, so many people thought he wouldn’t get convicted.

There were Republicans in our New York Times focus groups who didn’t think Donald Trump would be the nominee, that there were too many obstacles to him.

There is such a power that comes from the simple fact that he has now been convicted. And I’m not sure how that gets messaged by the other side, but with five months to go, I think that there will be voters in those suburbs of Philadelphia or in some of the northern parts of Wisconsin that can be on the swingier side and that care to some degree about ethics and government.

Goldberg: And let’s remember, he’s going to be sentenced, like, three or four days before the Republican convention. So this is going to stay top of mind.

Healy: Totally.

French: You know, the other thing about this that I think is very interesting is: The people who are the repeat voters, the 2020 voters, the people who are most engaged — they’re Biden.

It’s the people who are disengaged that are supporting Trump. The people who are the lower-propensity voters, the less engaged people, tend to support Trump.

That’s a huge challenge for the Biden campaign because you can sit there and say to them, “Well, you need to change your messaging” or “You need to change your strategy in some way.” But if the voters are disengaged, they won’t know anything about the messaging change.

You know what does break through? “Trump convicted.” Those two words, “Trump convicted.” That’s something that breaks through, even if you’re only getting your news occasionally on TikTok or on Facebook.

And I think that this has a real potential to break through with the very disengaged voters that are Biden’s weakness right now. And yes, some of them will reflexively sort of have that distrust of institutions and say this was political. But others are going to be surprised to hear that Donald Trump was convicted of a felony, and that will shake some people.

And I’m not na├»ve. I know that some hope that the dam will break and all the Trump support will be washed away. That’s 2016 thinking. That’s not 2024 thinking.

But what is possible is more erosion. More chipping away at that Trump support. The more the disengaged voters are exposed to those two words, “Trump convicted,” the more that might make a difference.

But I have to raise the issue of the appeal again. Here’s something I’m worried about: I’m worried about a situation where Trump is convicted, he loses a close election and then the case is tossed on appeal, which is quite possible. And I think that could be a very negative development, if that happens, and I’m actually quite worried about that.

Healy: I think you’re talking about a short-term point and a long-term point, David, that are really important. Short term, language that can break through is so important. In 2016 we had “Build the wall,” “Mexico will pay for it,” “Lock her up.” There were just certain phrases, as outrageous as they were, that stayed with people.

In 2020 there was a certain degree of, like, normalcy or “Let’s just get back to normal.” That was sort of a soft pitch, but it worked for a lot of people. It spoke to where they were.

“Trump convicted” may not be a hopeful or aspirational message, but it is something that brands the opponent better than trying to convince people that the economy wasn’t as great under Donald Trump as it was under Joe Biden. The risk of explaining politics too much doesn’t redound in the same way as one kind of like strong message like “Trump convicted.”

Now longer term, I mentioned at the top about American unity. I am very curious about how this washes out. I think Michelle is right that those other cases are more likely to lead to jail time.

But when history gets written and the MAGA base still exists four, eight years from now, if Donald Trump looks like he’s someone who was kind of put through the legal ringer and there was what seems to people like unfairness, witch hunt, rigged system. If there’s questions about appeal, if it turns out messier than one might hope, that could have its own damaging effect.

Goldberg: But wait. Can I just push back on that a little bit?

Healy: Sure.

Goldberg: Because I just feel like we never talk about the sense of injustice experienced by people who’ve had to watch Donald Trump enjoy impunity over and over again.

There’s a lot of people who have lost faith in — and I include myself among them — who started out cynical about the Supreme Court and who now see it as a wholly corrupt institution. I feel like there’s always a lot of worry about the MAGA base and their view of the legitimacy of institutions. And again, I just think that the MAGA base is going to feel victimized almost no matter what happens, right?

They won an election in 2016, despite losing the popular vote really decisively, and then spent four years feeling like they had somehow been mistreated. So that’s happening, no matter what.

I do think that one thing that could potentially, and again, this might be wishful thinking: Donald Trump loses this election — maybe this is just, like, kind of hopium, but I don’t think if he loses, he’s going to be the candidate in 2028. And so if the Republicans lose another election against an extremely unpopular incumbent, you have to think that there’s going to be some sort of reckoning.

I’m old enough to remember when people treated George W. Bush as this kind of godly figure. This paragon of manliness. There were these caricatures with this bulging codpiece. It was disgusting.

And then he became a loser and something that people were ashamed of and didn’t want to be associated with. That could happen here if he doesn’t lead them to the promised land.

Healy: Yeah, Michelle, I think you’re right. I mean, the dam isn’t going to break just because of “Trump convicted.”

I think it can it can get through to a lot of people. The fever on the right is certainly not going to break, but I think what it will take is that loss in November, yet another setback. A party that at least part of it has to ask themselves, “Is this the best that we can do?”

I feel like the big idea that I’m hearing from the two of you is that this is a historic conviction, no doubt, and that institutions held once again and did their job, in terms of holding Donald Trump to account.

And yet the Trump story is not over, and for a result that has a stamp of finality on Trump’s influence over America, at the end of the day, it really is going to happen at the ballot box. It’s not going to happen through all these trials. As important as they are, as legitimate as the charges are. Trump’s influence and staying power in American politics ultimately really comes down to a vote, to the ballot box. Fair? Unfair?

Goldberg: I think that’s right. And I think that a lot of people tuned out this trial because they sort of knew that, you know, whatever the verdict, the real verdict is in November.

Patrick: David, what do you think?

French: So I think that the ballot box is really going to tell Trump’s fate. But I will say this: that when you’re talking about a person who has been found liable for sex abuse, he’s now been convicted of a felony, and then if he wins the election —

Goldberg: And also, don’t forget the kind of massive fraud he was involved with his company.

French: Yeah, defamation, also, of the person he abused. I mean, there’s so much here. He’s been found liable for fraud. He’s been found liable for sex abuse. He’s been found liable for defamation. Now he’s been convicted as a felon.

If he wins anyway, the religious zeal around Donald Trump will be something to see. If we think that there has been a Trump cult already, if he wins in spite of all of this, the Trump cult will be — we will have seen nothing yet, is what I would say. And the level at which he would feel empowered to execute his objectives of vengeance — it would get truly scary, truly scary.

So in my view, in an interesting way, this verdict only increased the stakes of the election.

And the thing that worries me about that is, to circle back to the very thing that we talked about a few minutes ago, which is: Right now, it looks like the election is going to stand or fall based on the least engaged people in the United States. And that is an environment where, if I’m a political consultant, that is a frustrating reality. Because Donald Trump could win in large part because people who don’t follow any of this and don’t pay close attention to any of this put him over the top.

And then if that occurs, the religious zeal of his base, as I said, will be something to see, and the vengeance will get very dangerous very quickly.

Healy: David, Michelle, it’s so great to talk to you both. Thanks for gathering so quickly.

This audio was produced by Vishakha Darbha, Sophia Alvarez Boyd and Phoebe Lett. It was edited by Kaari Pitkin, Annie-Rose Strasser, Alison Bruzek and Jordana Hochman. Mixing by Isaac Jones and Carole Sabouraud. Original music by Pat McCusker. Our fact-checking team is Kate Sinclair, Mary Marge Locker and Michelle Harris. Audience strategy by Shannon Busta and Kristina Samulewski. Our executive producer is Annie-Rose Strasser. Abundant thanks to Alison Bruzek.

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Michelle Goldberg has been an Opinion columnist since 2017. She is the author of several books about politics, religion and women’s rights, and was part of a team that won a Pulitzer Prize for public service in 2018 for reporting on workplace sexual harassment.“

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