On trust and Trump

Americans don’t trust their institutions as much as they used to. This is one of those rare social science claims that everyone from across the political spectrum agrees with. Across all our institutions - academia, police, media, and government - we see declining levels of trust. Trust in our government has been declining steadily since the 1960s and is now at historic lows. This is happening across all of our institutions, with sharp declines over the past several years. For example, according to a 2022 Gallup Poll, only 14% of Americans have a great deal or a lot of confidence in our criminal justice system.

Individuals must have confidence in the ability of their institutions to work for them. If people don’t have trust in institutions, then...well...we get what we have now. We get a rejection of claims from scientific experts about COVID and climate change, a belief that teachers and professors are doing poor jobs or indoctrinating children, a refusal to believe any news coming from “the other side,” and a hyperpolarized citizenry unwilling to compromise with people who think differently.

The indictment and upcoming trial of Donald J. Trump present an interesting opportunity for one of our institutions - our criminal justice system - to show Americans that it can operate fairly and effectively.

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The Key Questions

Trump has been charged with thirty-four felony counts of falsifying business records to hide his criminal conduct from voters during the 2016 presidential election. Falsifying business records is a misdemeanor subject to a fine. But because, according to Manhattan District Attorney Alvin Bragg, these falsified records were used to conceal a crime, the misdemeanors have been elevated to felonies.

The most tribalized conservatives will see this as some type of politically motivated witchhunt, no matter the evidence or circumstance, and take a “they went after one of ours, so we need to go after one of theirs” approach. I personally find this appalling and a sad commentary on our polarized society.

But for the rest of us, those whose allegiance is more to America, there are two key questions we must ask ourselves:

Did the state collect reasonable evidence to suggest Trump actually committed these crimes?

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At this stage in this saga, it is beyond doubt that Bragg has evidence linking Trump to criminal behavior. A perusal of the statement of facts issued by the Manhattan DA makes for compelling reading and a future Netflix movie. Through Trump-owned organizations, checks were made to an adult film actress who threatened to publicize a sexual encounter (Stormy Daniels), to suppressing the reports of a doorman claiming Trump fathered a child out of wedlock, to paying for the silence of two additional women whom Trump had sexual relations with.

Cases do not make it to the indictment stage if there is not sufficient evidence to go to trial.

It is the second question that is more fundamental.

Is there a moral obligation to prosecute these crimes?

This often gets overlooked. We hear so often - if you do the crime, you must do the time. But in reality, we don’t want an overzealous state looking to enforce every rule in the book. There are too many rules. I probably committed three misdemeanors before finishing my second cup of coffee this morning. We want the state to exercise discretion when enforcing the law.

If you allow your Neighborhood Sociologist to put it in a more theoretical way, punishment for breaking laws - fines, incarceration, loss of privileges - is meted out for at least one of four reasons:

• Social protection - the state punishes someone by putting them in jail or prison, thus protecting others from their future criminal behaviors
• Rehabilitation - the state tries to prevent future crimes by changing the criminal’s behavior through training, treatment, or counseling
• Deterrence - by punishing someone, you deter that person and others from committing similar crimes
• Retribution - the state metes our punishment so that people feel a lawbreaker has been adequately punished for their crimes

If the state attempts to punish someone for breaking a law, and there is no clear purpose for that punishment, then Americans will see it as unfair.

Let’s go through these reasons.

We don’t need to be protected from Trump. Aside from a few temper tantrums where he throws his lunch against the wall, there is no history of physical violence. Social protection is not a compelling reason to go after a former president. Can he be rehabilitated? One wishes Trump could change his ways - but I believe it is a bit too late for this 70-plus-year-old narcissist. What about deterrence? Assuming that punishment will deter a person of Trump’s personality from future transgressions would be naive. Indeed, far from deterring future bad behavior, it may embolden it. If the Manhattan DA framed their case in terms of deterring future bad behavior from Trump, I, and many other Americans, would see this as simply a politically motivated show trial.

Punishing for protection, rehabilitation, or deterrence is not applicable here.

Alright...how about retribution?

Retribution

Many Americans - both Left and Right - feel that wealthy people like Donald Trump operate in this country as if they are above the law. The idea that the rich get richer and the poor get prison is a common, and not wholly unwarranted sentiment. The Trump case presents an opportunity to do something about this unfairness in the American legal system. People want lawbreakers adequately punished. They want retribution. This sentiment of retribution appears to be the frame through which Bragg is filtering his comments, exemplified by his “no matter who you are” comment when announcing the charges.

Again, I am aware that the most ideological on the Right do not care whether or not their party’s standard bearer actually committed a crime. They will find ways to absolve Trump of wrongdoing no matter how much evidence Bragg’s team presents in court. I am also aware that we don’t want to support a precedent where a politically motivated DA uses any ticky-tack offense to haul a political opponent into court. I don’t even believe Trump should serve prison time should he be convicted.

But he needs to be brought to justice for his transgressions. He needs to be adequately punished for a history of bad behavior. Even a trial will bring some solace to people who believe the wealthy and the powerful can saunter through life throwing their money around and breaking laws with impunity.

Donald Trump has consistently straddled the law - from not paying taxes for 10 years, to eighteen women accusing him of sexual harassment, to of course, inciting an insurrection on January 6th, 2021, that could have meant the end of our democracy as we know it. And this is not just any crime. His ability to use hush money to hide his multiple affairs and the alleged siring of children out of wedlock may have been the reason he was able to win the 2016 election and plunge America into chaos for four years.

Most people would gain trust in our criminal justice system if they saw a wealthy, powerful man with a history of deviant behavior legitimately brought to justice - even if he is the former president.

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