Believe it: Convicting Trump would inspire trust in democracy

05 January 2024

Across all our institutions – academia, police, media and government – we see declining levels of trust. Trust in our government has been declining since the 1960s. It’s now at historic lows.

This is happening everywhere with sharp declines over the past several years. According to a 2022 Gallup Poll, only 14 percent of Americans have a great deal or a lot of confidence in our justice system.

We must have confidence in our institutions. If we don’t, well, we get what we have now. We get a rejection of 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 anyone whom they think thinks differently.

The trial of Donald Trump presents an opportunity for one of our institutions – the justice system – to show Americans that it can operate fairly and effectively.

Key questions

Trump has been charged with 34 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 were elevated to felonies.

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

But for those of us who are allied with America, not Trump, there are two key questions to ask. One, did the state collect reasonable evidence to suggest Trump committed these crimes? Two, is there a moral obligation to prosecute them?

It’s beyond doubt that Bragg has reasonable evidence.

A perusal of the statement of facts shows that, through the Trump Organization, checks were written to an adult-film actress (Stormy Daniels), who threatened to publicize their sexual encounters. They were written to suppress reports of a doorman who claimed that Trump fathered a child out of wedlock. They were written to silence two additional women whom Trump had sexual relations with.

Cases do not make it to indictment if there’s not enough evidence for trial.

It is the second question that is more fundamental.

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 law. There are too many. 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 me to put it in a more theoretical way, punishment for breaking laws – fines, incarceration, loss of privileges – is meted out for 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 punishment so people feel lawbreakers have 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 it’s 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. Far from deterring bad behavior, it may embolden it. If the Manhattan DA framed their case in terms of deterring bad behavior, 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, but how about retribution?

Retribution

Many Americans 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 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 their standard bearer actually committed a crime. They will find ways to absolve him of wrongdoing no matter how much evidence Bragg’s team presents in court.

I am 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.

Trump has consistently straddled the law - from not paying taxes for 10 years, to 18 women accusing him of sexual harassment, to inciting an insurrection 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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