Donald Trump and Jonathan Edwards

We as a country will have a wild few weeks now while Donald J. Trump is (a) receiving the formal nomination of a major political party for the presidency, and (b) also receiving his probation report and sentence. An odd intertwining of processes.

It is a good time to try to put one’s thoughts together with some clarity.

So … what do I think? First, I want to set aside the warnings we hear from the former president and his admirers, that “if it can happen to Trump, it can happen to you.” Yes, I know it can happen to me. I’m an ordinary non-billionaire non-celebrity. I'm a schmoe. It has always been the case that “it,” arrest, trial, conviction, sentence could happen to me. The fact that it is happening to Trump means he joins the club in which the rest of us are members, it doesn’t bring the club into existence! “They” don’t have to get through Trump to come after me, They could always have just come after me.

When someone like Elon Musk says that, though, he may mean, “since it is happening to Trump, it could happen to me, Elon Musk, famous plotter of Mars voyages on the fuel of my billions.” If THAT is what the warning means, it is a feature of Trump's conviction, not a bug.

Second, for reasons I have explained in other posts, Trump in particular concerns me, in my capacity as a lover of liberty. I loathe his dictatorial pretensions, and said so even before he “came out” and started talking about his dictatorial plans or using Reich imagery. I want to see him and the threat he poses dealt with non-violently, but I will say that almost any non-violent development that takes him down a peg is a good thing and it has my endorsement.

All that is preface for my third point, which is a tad more complicated. I think we (lovers of liberty) got lucky. This case could easily have gone the other way, with a hung jury or even with an acquittal that would have left us with a stronger and more dangerous Trump. The proper reaction right now is not just “Hurrah” but “Whew! -- a close one!”

Why did the jury vote to convict? A key answer has to be “because no reasonable alternative view of the evidence was actually presented to them.” That is what “reasonable doubt” means in practice -- once a threshold of prosecutorial evidence has been exceeded, ‘reasonable doubt’ means that a jury has decided that there is another reasonable way in which one CAN view the evidence that does NOT entail guilt, and they cannot definitively exclude that other way. It is the job of the defense counsel to present that other way, to present what is sometimes called a counter-narrative to the prosecution’s narrative.

Sometimes (not always) presenting a counter-narrative means that a defendant has to take the stand, waive his fifth amendment rights, and provide his own take on the state’s evidence. It means he has to face an informed prosecutor ready to cross-examine him about the particulars of his take. Not just talk about doing so, and then backing away.

Consider John Edwards’ defense. Among all the analogies that have been offered in discussing this case, John Edwards is chiefly ignored. That litigation had the same combination of sex, denial, campaign finance, and power politics.

After a failed presidential campaign in the 2008 cycle (destroyed by a sex scandal), Edwards was indicted by a federal grand jury on charges of violating campaign contribution laws. The charges said in essence that he had used funds contributed to his presidential campaign as part of his conduct of the affair, not the intended purpose of the donors, presumably, and thus a violation of federal law.

Both cases included a significantly absent wife. Melania never showed up at The Donald’s trial. Elizabeth couldn’t show up at John’s: she had died of cancer before the indictment.

The result was very different, though, Edwards -- see above with Elizabeth at a happier time -- was acquitted outright on one of the charges and the jury was hung as to the others. How? Well, better lawyering, and a defendant whose ego allowed the lawyers to present their unflattering counter-narrative.

Edwards' lawyers said: yes, our client acted horribly. He had a long-term fling which he hid from his wife. The other participant in the fling, Rielle Hunter, gave birth and that child was his. Edwards lied about it and even tried to assign the paternity of that child to a specific staff member. All awful. But, his lawyers said, this was not a violation of the campaign finance laws.

They contended Hunter had indeed engaged in legitimate campaign-related activities (she was a videographer who produced Edwards campaign “webisodes” for YouTube) -- that the money paid to her was for those activities, and that the other money involved in arranging their trysts had come from Edwards own funds, not from campaign funds. This counter-narrative doesn’t make him an honest person, but it doesn’t make him guilty of the charges, either.

THAT is the sort of counter-narrative that can add up to reasonable doubt in the minds of reasonable people.

And this brings us back to Trump. Good defense attorneys, given free rein by their client, could have devised an analogous account, postulating a wall between the campaign and the sleazy personal behavior. Yes, in a monogamous society sex outside of the marriage generally involves deception, often multi-layered deceptions. Yet these by themselves do not constitute the crimes charged. Heck, even the misdemeanor tampering with company records could have been acknowledged (the statute of limitations on misdemeanors has passed) and the felonies still could have been denied, since the felonies all involved the connection between those tamperings and the campaign.

He could have elaborated on the contention, which his lawyers in fact only hinted at, that finangling of the records was old-fashioned don't-embarrass-the-family protectiveness. “Nothing to do with the campaign folks.” That would have been much more persuasive if he had been willing to admit that the embarrassment he was trying to protect them from was a disclosure of uncomfortable truths about himself. [In other words, that Stormy was telling the truth, just as Rielle, eventually, told the truth.] Stormy was, and acknowledging THAT truth, while spinning it into an Edwards-style counter-narrative, could have set The Donald free.

Instead, his lawyers adamantly insisted (and he in out of court statements insisted, though he never swore to it) that he had done nothing wrong, that he had never had sex with Stormy Daniels, never tampered with business records, etc. I think this was bad lawyering, and the badness of it may have been more an unwillingness to stand up to the client’s arrogance than it was a matter of simple incompetence.

Let us make this my fourth and final point. Were better lawyers not available to DJT? He seems to go through lawyers pretty quickly. Some of them end up in prison (and then testifying against him), some end up with hair dye streaming down their faces and in bankruptcy court. And DJT is famously tight of wallet. I understand he has stiffed others of his various legal teams. He must have worked his way into a situation in which the best white collar defense lawyers (the sort who worked for Edwards) avoid him. They probably run away when they see him coming.

If so, that is the flaw whence comes this conviction. And I am grateful to the universe for that.