Will convicted felon Trump go free?

Leading Republicans claim that Trump’s New York trial and conviction on 34 felony counts show that Trump is singled out for differential treatment. Trump loyalist Representative Scott Perry (R-Pa.) decried a “two-tiered” justice system that gives a “pass” to “coastal elites and those well-connected to the left” and “they throw the book at you” if you’re not so connected. Trump himself said: “This was done by the Biden administration in order to wound, to hurt an opponent, a political opponent”.

Trump even spun this into a reason why “the Black people” like him: “I got indicted a second time and a third time and a fourth time, and a lot of people said that that’s why the Black people like me, because they have been hurt so badly and discriminated against, and they actually viewed me as I’m being discriminated against.”

For once, the Republicans and Trump fans are right: Trump was treated differently. And they are right for all the wrong, up-is-down, reasons. The “two-tiered” system let Trump get away with multiple violations that would have sent poor, working-class people to jail for months.

As Paul D’Amato recently pointed out, the US justice system isn’t “failing”. It’s actually doing what it is designed to do: that is, prosecute, convict and incarcerate people who are poor, working-class or oppressed in some other way. And unless Trump’s conviction is reversed on appeal (a possibility that a well-known legal scholar hostile to Trump concedes), he will carry the designation of “convicted felon” with him the rest of his life. For most ordinary people, being a felon results in multiple limitations on their life chances: being denied government benefits, not being able to get a job, being denied or kicked out of housing, losing voting rights. Trump, on the other hand, can be a convicted felon and still be elected president!

So how did Trump navigate this system? Forget the conservative noise machine claiming that Biden’s Department of Justice is carrying out a vendetta against Trump. Not only did the Department of Justice have no role in the decision of a local New York district attorney to bring charges against Trump under state law, but the Biden Justice Department has been notoriously slow and timid about charging top organisers—including Trump—in the 6 January 2021 attempt to overturn the 2020 presidential election.

Besides being the former president, Trump has another advantage that most defendants don’t have—millions to hire top lawyers to defend him. The vast majority of defendants in Trump’s situation don’t go to trial. They usually end up pleading guilty with the hope of lessening their sentence. In New York, 96 percent of defendants in felony cases plead guilty, compared to 99 percent of those charged with misdemeanours.

Trump’s high-priced lawyers may not have prevented the jury in New York from convicting him, but his legal team has been successful in devising ways to tie up courts and to delay the reckoning he deserves. With the Supreme Court and Trump-appointed federal Judge Aileen Cannon aiding Trump’s strategy of delay, it’s unlikely that either of the main federal cases against him will be concluded before the 2024 election. And if Trump ends up in the White House in 2025, he will make sure that the DOJ drops charges against him.

What does it mean that Trump is the first president to be a convicted felon? It’s obviously an unprecedented event that will taint Trump more than he lets on today. Convictions in his other potential trials—for election fraud in Georgia, for conspiracy to overturn the 2020 presidential election and to deny voters their rights and for attempting to steal classified government documents—would be even more serious violations.

But one has to ask why a sleazy deal to pay off a porn star to prevent her from “telling all” before the 2016 election was the one that brought down the former president? After all, Trump had a decades’ long history of scams, tax fraud, racial discrimination, sexual assault and bankruptcies with other peoples’ money before becoming a politician. His organisation is widely expected to be a front for money laundering from Russian oligarchs and other shady characters. And in his disastrous four-year term he racked up two impeachments: one for trying to extort the Ukrainian president and another for “incitement to insurrection” to overturn the 2020 presidential election that he lost by more than 7 million votes nationwide.

Perhaps it’s fitting that the tabloid world that Trump used to make himself into a national figure provided the evidence that the New York jury used to convict him. But his ability to escape a lifetime of criminal activity has always depended on “friends in high places” who saw some advantage in allowing Trump to continue on his way. For decades, Trump’s contributions to multiple politicians (Democrat and Republican) in New York bought him protection, and his aggressive legal tactics that Roy Cohn, a henchman for Senator Joe McCarthy in the 1950s, devised for him, exhausted those who tried to win justice against him in the courts.

Ever the one-trick pony, Trump and his legal team have run the Cohn playbook and leveraged his support among Republican “base” voters to escape accountability for more serious transgressions than playing “catch and kill” with tabloid exposés. In both of his impeachment trials, support from Republican senators rendered him “not guilty”. And his lawyers, with the help of the justice system’s procedural inertia and the willingness of Trump-friendly federal justices to entertain absurd legal claims, have successfully staved off trials in more serious indictments against him.

So if a New York jury and court might have been able to wring some “justice” out of Trump’s life of crime, the course of events should underscore how narrow is this concept of justice when it comes to the president and the executive branch. In the one case that the Supreme Court is expected to decide in the next few weeks, Trump is making the extraordinary claim that the president should have total immunity so that any actions presidents take during their term in office can’t be subject to criminal prosecution. Most legal observers who aren’t on Trump’s payroll believe that there is no basis for the Supreme Court to accept Trump’s contention.

But even if the court rules against the broad assertion of immunity, it’s worth pondering the extent of immunity already allowed as part of the normal exercise of presidential power. US presidents have imprisoned hundreds of thousands of Japanese-American citizens, have killed hundreds of thousands with atomic weapons, have helped to engineer military coups and dictatorships, and have involved the US in disastrous wars based on lies (see Vietnam and Iraq). Yet few in any position of authority in the U.S. political system would consider any of these actions “crimes”. At most, they become topics of apologies issued decades later.

Today, the Biden administration is actively abetting a war in Gaza that the International Criminal Court has declared to involve “crimes against humanity”. The ICC has even issued arrest warrants for the Israeli prime minister and military chief, who are the chief recipients and beneficiaries of US support and armament. The administration may make critical noises about Israel’s conduct of the war and its impeding of humanitarian aid, but it continues to provide Israel a virtual blank check to continue its assault on millions of unarmed civilians. The administration has clearly refused to enforce laws that prevent US military assistance from being used to carry out human rights violations. And all of its rhetoric about defending the “rule of law” and a “rules-based international order” marshalled in support of Ukraine has been tossed aside to support Israel in the Gaza war.

Before we echo liberals’ welcoming of the verdict against Trump as proof that the “system worked”, we should also ask why “the system” allowed Trump to escape accountability for years, or why, today “the system” is ignoring clear violations of US law in furtherance of the catastrophe in Gaza.

Many “smart people” in the US political media have already declared that Trump’s conviction and further legal troubles won’t make much difference for the November election. The people who hate Trump already will see his conviction as vindication, they say. And the Trump base will see a conspiracy of the “deep state” to silence Trump.

“From a political side, this is a big win ... Trump’s website last night crashed. So many people giving money ...” said Senator Marco Rubio (R-Fla.) on the day following the verdict. The one-time Trump opponent who Trump mocked as “Little Marco”, is now reportedly on Trump’s vice-presidential shortlist. So, whether he really believes this or not, or is trying to keep his Veep hopes alive, his analysis of Trump’s conviction was this: “I do think there are probably some federal constitutional rights that were clearly violated here. Put aside all of that, I think Trump benefits from this. I think they elected him president last night”.

One major survey showed the US public to be split evenly between support and opposition to the verdict. Almost two out of five Republicans either supported the verdict or had no opinion on it. The New York Times found a small shift toward Biden in the wake of the verdict. While these early signs aren’t predictive for November, they underscore more weakness in Trump’s support than you would expect given all of his supporters’ bluster. As the liberal blogger Josh Marshall put it, the organised campaign of leading Republican politicians denouncing the verdict as a partisan attack, is “a concerted effort to keep stragglers in line and shape press reaction to the conviction”.

It may not be apparent now, but it’s hard to see how Trump’s status as a serial predator, fraudster and now convicted felon, is a benefit to him. And if the November election proves to be as close as all analysts are expecting right now, even a small defection from or deflation of Trump’s support base could doom him.

Without the protection of the White House and a pliant Justice Department, Trump may have to face the trials that he’s successfully avoided until this point. At that point, we’ll see whether the system truly will uphold the idea that “no one is above the law” or whether the bipartisan US establishment looks for a way out that falls short of holding Trump and his associates accountable.

First published at the International Socialism Project.

Lance Selfa is the author of The Democrats: A Critical History (Haymarket, 2012) and editor of US Politics in an Age of Uncertainty: Essays on a New Reality (Haymarket, 2017).