Could Trump Win By Simple Attrition Rather than Vindication?

Could Trump Win By Simple Attrition Rather than Vindication?

 

By Jonathan Turley

Below is my Fox.com column on the shift of fortunes for former president Donald Trump in the last week. Trump does not appear to be necessarily moving ahead legally but he is still prevailing politically in a curious war of attrition.

Here is the column:

While Woody Allen once said that  “80 percent of success is showing up,” former president Donald Trump proved this week that the same could be said about “just sticking around.” Trump had one of the best weeks as cases and critics seemed to implode from the disqualification effort in Washington to the scandal in Georgia. Yet, Trump is not out of the woods and is facing significant threats in what is becoming a war of attrition.

In Washington, the Supreme Court gave a chilly reception to the disqualification effort that bordered on the glacial. While law professors like Harvard’s Laurence Tribe insisted that the basis for barring Trump from office under the 14th Amendment was “unassailable,” the justices seemed utterly unconvinced and there is the possibility that the entire effort could now be defeated unanimously. Even liberal justice Ketanji Onyika Brown Jackson called the effort anti-democratic.

In Georgia, the case against Trump is floundering as allegations mount against Fulton County District Attorney Fani Willis over her intimate relationship with her subordinate special prosecutor Nathan J. Wade. This week, a court filing alleged that Willis and Wade filed false claims in court on when their relationship began. The two prosecutors have insisted that they only became intimate after Willis hired Wade.  Wade’s former lawyer has reportedly come forward to contest that claim.

That allegation, if true, could make the continuation of Willis and Wade in the case untenable. Various defendants being prosecuted in Georgia are accused of false statements and filings in court. Of course, the removal of Willis and Wade will not necessarily end the case, but it will present logistical and optical problems for the office.

There are also calls for the removal of Alvin Bragg in New York, who is accused of being lax on crime overall despite his determined effort to convict Trump.

Trump has a curious fortune in critics who seem over time to combust in rather spectacular fashion. Michael Cohen, his former lawyer, went to jail and lost his law license.  At the Justice Department, various FBI officials from the Russian investigation were accused of wrongdoing and forced out of the Justice Department. That included James Comey who was found to have removed FBI material after Trump fired him and gave it to a friend who leaked it to the press. Another official pleaded guilty to criminal conduct associated with the Russian investigation.

In politics, former Gov. Andrew Cuomo, who attacked Trump for his treatment of women, was forced out of office for sexual harassment. Michael Avenatti was sentenced to a long prison term for fraud and other crimes. Senator Robert Menendez (D., N.J.) who voted for Trump to be convicted in the Senate is now under indictment for corruption.

Even in the arts, Trump critics have fallen from great heights. Comedian Kathy Griffin has not only become persona non grata after her gory depiction of a beheaded Trump but she is now beseeching people to buy tickets for a languishing come-back tour. Alec Baldwin, who scathingly played Trump, has been criminally charged after shooting a movie crew member.

Of course, it is fair to note that some of Trump’s allies have fared equally badly, including those convicted or facing trial such as Paul Manafort, Michael Flynn, Roger Stone, Rudy Giuliani, Sidney Powell, and others.

Yet, there is no question that time has worked in Trump’s favor in fulfilling certain narratives. He has accused the Democrats of trying to rig elections. While debunking claims in 2020, Democrats like Colorado Secretary of State Jena Griswold bulldozed any high ground by trying to prevent citizens from voting for Trump as he leads in the polls.

Likewise, Trump long mocked President Joe Biden over his age and mental deterioration. This week, Special Counsel Robert Hur justified his declination of criminal charges against Biden in part due to his “diminished faculties.” He said that his team was concerned that a jury would find him a “sympathetic, well-meaning, elderly man with a poor memory.”

Biden then proceeded to hold a press conference to show that he was mentally sharp. It was a disaster. Biden not only came across as a cranky octogenarian telling reporters to get off his lawn, but he proceeded to confuse the presidents of Mexico and Egypt.

Now, 76 percent of Americans are concerned about Biden’s mental fitness to be president.

Even more important was what the report said about Biden’s underlying conduct. Despite false claims by Biden in the press conference, the report found that he had willfully retained classified material, mishandled such material for years and disclosed classified material.

If that sounds familiar, it should. The pictures and allegations are strikingly similar to those involving Trump at Mar-a-Lago. Indeed, the report showed that every element of the crime was evident, which is likely why Hur tried to use Biden’s memory and sympathetic demeanor to justify his decision. Yet, it suggested that a less sympathetic defendant with a better memory would have been charged.

That unsympathetic figure is sitting in Mar-a-Lago facing 37 counts.

Hur tried to distinguish the cases by citing Trump’s failure to cooperate and his efforts to allegedly obstruct the investigation. However, that explains the obstruction counts. The problem are the other counts for retention and mishandling. Some of those charges require a simple showing of gross negligence.  Hur found willful misconduct by Biden, but dismissed similar charges.

For many, the two special counsel investigations have proven, again, a two-tiered legal system. In Florida, Jack Smith went after Trump with an abandon while in Washington Hur showed an avoidance that proved insulting to both the president and the public.

Polls show most Americans believe that the FBI has been politicized.  Even in Georgia, a recent poll found 77 percent believe that politics played a major role (59%) or some role (18%)  in charging Trump.

None of this means that Trump is out of the woods. It is possible that he could scuttle the federal investigation if he is elected or even pardon himself. However, cases in Georgia and New York can still move forward absent legal challenges.  Moreover, he has had a couple of rough weeks including a massive award in a defamation lawsuit and a pending ruling that could bar him from doing business in New York and potentially hundreds of millions in damages.

The biggest concern remains timing. While polls indicate that the public sees a political motive of some of these cases, a majority of voters in swing states also indicate that they would be swayed by a conviction against Trump.

Perhaps for that reason, Smith continues to push courts to allow him to try Trump before the election. However, with a pending appeal over immunity, he may be running out of runway. The Justice Department has long opposed trials within a couple months of an election. A Trump trial would likely go months, making any date after the summer increasingly difficult. If Trump is elected, Smith knows that there may be support to drop the cases from an exhausted public in 2025.

However, at this rate, Trump may be counting less on vindication than attrition.

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(TLB) published  this article from Jonathan Turley with our appreciation for this perspective

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

Header featured image (edited) credit: Trump/open publ;ic card/wp

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