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The Guilty Archipelago


Trump as Criminal

When the peals of laughter broke out in the building, I knew what had happened.

Angry American. Donald Trump, CPAC.

Late Thursday afternoon, a Manhattan jury found Donald Trump guilty on 34 felony counts stemming from his attempts to keep his extra-marital interlude with an adult film actress out of the papers.

By the time one could get to a computer, the memes were already pouring out. Their content was so obvious (because the underlying events were so sleazy) that it was easy to believe that the semi-sentient internet might have autogenerated them without any human intervention needed.

It’s hard to imagine that anyone was surprised by this outcome. The events in question and the crimes with which Trump was charged seem very much middle of the fairway (so to speak) as judged from acts and attitudes already undertaken in public.

By the same token,  those among President Trump’s critics were well aware of how little the decision probably means in the longer term.

The felonies for which Donald Trump was convicted are of the least severe variety.

Although they could, in theory, result in a four-year prison term, Trump is (technically speaking) a first-time offender (he does not have a previous criminal conviction), and his crimes were non-violent.

The worst he could be subjected to would be some community service.

While the prospect of the owner of Trump Tower picking up trash in the New York subways has a certain delectable element of Schadenfreude, it is clear that his current indisposition is unlikely to change his status with his core supporters.

Among his most devoted adherents, the charges against The Donald are bogus. Most of them (the men among them anyway) regard the opportunity to sleep with a porn star as the sort of thing that one ought to want to do. The need to cover it up results only from the moralism of Trump’s opponents.

There are a couple of facts worth noting for those who are not obsessive followers of the ins and outs of the American legal system.

The most important thing, outside of the paltry sentence that these charges carry, is that neither Trump nor anyone else occupying the presidency can pardon the conviction.

Although quite extensive and substantial, the president’s power to pardon applies only to federal law.

The charges on which Trump was convicted today were violations of New York state law. If a pardon were to be forthcoming, it would have to come from the governor.

Kathy Hochul, a Democrat, is the current occupant of that office. No Republican has held it since 2006, so the chances of Donald Trump receiving relief are slim.

Trump can (and certainly will) appeal his conviction to the New York State Court of Appeals. There, he will have to show that the trial judge committed a technical error so grievous as to call the conviction’s safety into question.

While this might occur, most independent observers and legal experts suggest that the basis for such a claim in the current case could be more substantial.

Failing that, Donald Trump could seek relief from the US Supreme Court.

This is one of the eventualities against which Trump’s packing of the court with zealots and cynics of the far right was meant to prepare. However, for the SCOTUS to grant certiorari, the court would have to decide that some constitutional issue of law was at stake.

Much as the saddling of a former president (and the presumptive nominee of one of the major parties) with a slew of felony convictions might be expected to have constitutional implications in a republic, the actual constitutional issues at play are negligible.

The US Constitution does not forbid people with felony convictions from seeking or occupying the office of president, in all likelihood because the framers never imagined that any felon would be so bold as to run for the office or that any significant proportion of the citizenry would vote for them if they did so.

The republic may pay a heavy price for that original lack of imagination.

In historical terms, Donald Trump has joined that irony-burdened historical set, including the likes of Al Capone and Richard Nixon, whose legal difficulties have resulted not from their underlying criminality but from the means employed to cover it up.

Capone was famously convicted of tax fraud for failing to properly report and cough up the government’s rake-off from his ill-gotten gangster lucre.

Nixon was unaware of the specific activities undertaken on his behalf in the Watergate complex and elsewhere until after the fact. It was his attempts at a post-facto coverup that led to the threat of impeachment and his resignation.

Trump still faces a considerable number of other legal issues.

The most serious of these is the charge that he attempted to overturn the results of the 2016 presidential election in the state of Georgia and the charge that he mishandled classified documents by keeping them in unsecured areas (principally a bathroom) of his Mar-a-Lago club in Florida.

The former case has been beset with a scandal surrounding the conduct of the main prosecutor, although not one that has a clear connection to the substance of the case.

Also, the leadership of Georgia’s Republican-dominated state legislature has made it clear that they would like to see the prosecutor removed and the case disposed of on political grounds.

The case regarding the documents was assigned to a Trump-appointed judge who has slow-walked it and issued a series of perplexing rulings, leading some experts to question whether she might be trying to delay it until after the election.

Should that happen, and should Trump again be elected president, those charges could disappear as, unlike the hush money case in New York and the election interference case in Georgia, the crimes in question are federal.

The details of Donald Trump’s legal difficulties also point to an interesting feature of right-wing populism more generally.

In times past, the commitment to law and order was a staple of the political discourse of the right. In the United States, the Republican Party has set out its stall on the proposition that its representatives are “tough on crime,” while the milquetoast Democrats presumably are not.

Likewise, the promise of the “short, sharp, shock” was a frequent element of Margaret Thatcher’s appeal.

But there is criminality, and then there is criminality. A great deal depends on who is committing which crimes. Crimes against property (or the lives and limbs of its owners) are the sort of thing to stir conservative blood, especially if those committing them are not of the caucasian persuasion.

By contrast, lying about sleeping with a porn star hardly rises to the level of criminality, irrespective of the circumstances in which it occurred. But even if it did, in the symbolic world of right-wing populism, the question of whether the perpetrator is “one of us” (i.e. white, conservative, etc.) crucially inflects the way these actions are perceived.

This situation is more intensified in the United States.

Once Trump’s political fortunes survived the Access Hollywood affair, in which he was caught on a hot mic bragging about the fact that being famous meant that one could sexually assault women at will, the president quickly recognised that post-Puritan America was a thing of the past.

By contrast, Germany’s Alternative für Deutschland has suffered several setbacks, including being dismissed from the European Parliament’s Identity and Democracy group due to its lead lawmaker, Maximillian Krah, praising the Waffen-SS in one of Italy’s largest newspapers, La Repubblica.

But these seem to be outliers.

Heads of state such as Jair Bolsonaro, Rodrigo Duterte and Benjamin Netanyahu have shown that by redirecting their criminality at people disliked by their supporters, they’ll identify with their transgressions and see them as serving a greater good.

This reflects a trend in which the far right increasingly views the rule of law as a tool for achieving political advantage rather than as a core feature of democracy.

Populist politicians increasingly disparage laws as elite fantasies out of sync with the people’s will. While its most hysterical and disturbing illustrations can be found in the United States, illiberals and neofascists in Europe have followed suit.

One can see this in the trumped-up cases being pursued against critics of the regimes in Hungary and Italy, while party leaders like Matteo Salvini and his mentor, the late Silvio Berlusconi, have played fast and loose with the law for years.

Perhaps the most important outcome of the Trump hush money trial will be the humiliation that it visits on Donald Trump himself.

This morning, he was out giving interviews, telling reporters, “Mother Teresa could not beat these charges. The charges are rigged.”

Presumably, Mother Teresa was not sleeping her way around Kolkata or doling out money to keep her booty budget secret.

Perhaps Trump has access to alternative facts.

Either way, one of the ironies of our current situation is that Trump’s conviction shows that the standard rules don’t apply.

The ruling damaged him, but one can’t help but hear in Trump’s words the determination to become the law when he gets reelected.

Photograph courtesy of Gage Skidmore. Published under a Creative Commons license.