Tweet Share Share Comment Last week, prosecutors wrapped up their arguments in the civil trial brought by New York Attorney General Letitia James against Donald Trump for fraudulent business practices on the part of the Trump Organization. The court has heard testimony from 25 witnesses over the past six weeks. But trial testimony last week was one for the books. In his rambling, menacing, purely political testimony, Trump and his lawyers have effectively turned a New York City courtroom and the courthouse steps into a campaign stop, snapping a legal trial into a political trial, while many of us missed it.
On this week’s Amicus podcast, I talked with Eric Posner, a professor at the University of Chicago Law School. He is the author of, most recently, How Antitrust Failed Workers, published by Oxford University Press. His writing on the subject of political trials has been extensive, including a law review article from 2005 in which he detailed the defining aspects of political trials, and several recent articles cautioning against allowing the current Trump lawsuits to become versions of the same. His view is that the so-called insurrection clause trials over Donald Trump’s eligibility to remain on the ballot risk similar politicization and blowback. Our conversation has been edited and condensed for clarity.
View Transcript Dahlia Lithwick: So, there was another piece of news this week that feels like it’s in your wheelhouse. The Minnesota Supreme Court blocked an effort to use the insurrection clause to keep Trump off the ballot in that state. You’ve offered a critique to the efforts that are being made in various states to use Section 3 of the 14th Amendment as a vehicle for removing Donald Trump from state ballots. I think, in your view, doing so pretty much guarantees what will be a seismic blowback from taking a former president, the Republican Party front-runner, off the ballot. You’ve written that this would have the impact of disenfranchising a huge portion of the electorate in its own eyes. And this is not you offering a constitutional or originalist reading. This is you making a pragmatic political point, similar to the pragmatic political point you’re making about having big political show trials.
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Eric Posner: I think the problem is that a lot of people are thinking about these attempts to prosecute Trump or to keep him off the ballot in a lawyerly fashion, which, of course, is understandable because these are legal proceedings and the insurrection clause argument is based in the Constitution. But this kind of legalistic thinking makes sense when you’re talking about ordinary people or businesses who are subject to the ordinary types of legal process. But when you’re talking about somebody who’s a former president and is the front-runner for office, you have to think about these cases, as you say, pragmatically. You have to think about them in political terms: What is the impact of these cases and claims going to be on the public now? It’s tempting to talk about Democracy with a capital D, and one can do that, but I’m more interested in political psychology. Are these efforts going to backfire and help Trump? Or, even if they’re successful, are they just going to cause long-term damage because half the population or 40 percent of the population feel like they’ve been disenfranchised? Maybe Republican officeholders will feel that now they have a basis for retaliating against Democrats. And it’s not that one shouldn’t bring these sorts of claims. It’s that one should do that while also thinking about these types of political and pragmatic effects.
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Unfortunately, there’s a sense in which this is a further cycle in the degradation of American liberal democracy, thanks largely to Trump. You know, if he had acted more responsibly, then people on the other side wouldn’t have brought these cases. But they have, and they probably should have, at least some of them. But if you bring them without actually thinking about their political effect, they take on this political tinge that’s just being irresponsible because you could produce outcomes that are even worse than what we’ve experienced so far.
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So, I have to [mention] Alina Habba, Trump’s lawyer, [and] whatever it was that she was doing in court last week. … Barb McQuade, on our sister podcast What Next, said that she had just never seen an attorney make what was essentially a campaign appearance: trashing the judge, trashing the judge’s request that she sit down, implying that everything that the judge was doing was an infringement on her ability to put on a case. But this is what judges do. They tell lawyers to get their client under control all the time. This is further evidence of this point you’re making, this global point about “Hey. She’s just not acting like a lawyer.” Whatever it is that she is doing is a completely political act. And by the way, she doesn’t care if she’s sanctioned, and she doesn’t care if she loses.
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I think a lot of lawyers who don’t want to anger a judge or be subject to disciplinary hearings will leave it to the defendant to make the outrageous claims about the judge or the prosecutor rather than doing it themselves. I don’t actually think this is unprecedented, though. I do think there are lots of famous lawyers—William Kunstler comes to mind—lawyers who made their reputations defending unpopular defendants. They would argue that, for example, the prosecutor or the administration is biased. This is a kind of politically tinged defense lawyering, and it makes a lot of sense because the goal is not necessarily to win at trial; sometimes it’s foregone. You’re not going to win a trial because the law is so clearly against you. But if you win in the court of public opinion, that may help your client because a pardon might come later down, or your client after he or she leaves jail might be able to have a political career or at least go on the talk show circuit.
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I mean, there are lots of longer-term goals here, and I also think that part of what’s going on in the Trump civil fraud trial is that the lawyers are trying to goad the judge into making a mistake. I think that’s a risky maneuver because the lawyers themselves could just get into trouble. But I suspect they’re trying very hard to please their client. They’re hoping for some really nice rewards down the line, in the form of political appointments or what have you. Or maybe they’ll just burnish their reputation as lawyers. But if they can annoy the judge enough that the judge makes a mistake, bursts into a rage, or says things to reporters outside of the trial, showing some level of bias, that’s grounds for reversal on appeal. And that can be a huge benefit for Trump because his goal now is to delay. The civil trials may be a little bit different from the criminal trials. But if he could just get it extended so that it doesn’t even conclude until after the election during his campaign, he’s going to be able to point to this as yet another example of bias against him, of how he’s defeating the bad guys.
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Because I class everything you have just said under the same rubric that I put Margaret Sullivan, who’s been writing that the media is not taking the stakes seriously enough, and Jay Rosen, who is saying, “We can’t keep doing the horse race; we’ve got to do stakes”—now you’re saying the same thing, in a legal context rather than a political context. But it leads me inexorably to ask you: What do you do instead? Look, it had to be done. We weren’t going to let the guy just walk away from the smoldering ash heap of constitutional democracy. What’s the alternative? If we stipulate that you’re right, and that this may backfire immensely, what’s the alternative?
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Well, the alternative is not to bring these cases. So, I’m not opposed to all of these cases. I think, for example, the confidential documents case, that seems very solid. And I’m ambivalent about the Georgia and the D.C. prosecutions. So, I’m making a narrower point that these are risky and that these risks should be taken into account. And we should be worried about these sorts of trials.
But really, I am a bit worried that people who think Trump is an authoritarian or just a terrible human being, even if he’s not an authoritarian—that they are themselves doing things that are in some ways Trumpian. The real way to oppose Trump is through democracy, to campaign against him, to make arguments that he’s doing a bad job, to vote against him.
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The attempt to use the 14th Amendment to keep him off the ballot, I think that’s a real mistake. That’s a kind of subterfuge. You can argue it’s there in the Constitution, but the real effect of doing that is to really, I think, undermine the election. Maybe if it had been clear five years ago that if you do something like what Trump does, you can’t run for office. But just coming up with this new theory whole cloth to prevent him from running, I think this will cause many people who are already losing confidence in democracy or the U.S. system to lose even more confidence.
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Read More I do think that if Trump breaks the law in clear ways after he’s out of office, by all means it’s appropriate to prosecute him. I think even his supporters understand that if he murdered somebody, for example, that he should be tried and put in jail, even though that will interfere with his presidential campaign.
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But when you get to these hazier and more politically charged types of prosecutions, they’re just these risks. I don’t think there’s an easy answer to this question because I do believe that he acted terribly, but we’re just in this very difficult place. Certainly, it’s a mistake to think that these trials are going to solve all the problems with Trump. I don’t think that’s going to happen, even if he’s convicted.
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And I think there’s a danger of taking the next step, thinking of other ways of preventing Trump from reaching the presidency, that will do further damage to U.S. institutions. So, let me just give you one example. In the Times the other day, a columnist discussed [the idea] that the Federal Reserve should lower interest rates in order to pump up the economy so that people will vote for Biden instead of Trump.
And that’s really just one step from using trials politically to go after Trump. Once people are saying those things and doing those things, they’re not being that much different from Trump himself. Trump, after all, did try to get the Federal Reserve to lower interest rates, while he was in office, to boost the economy.
And we were all outraged by that. But at some level, you’ve just got to draw the line and hope that when the election comes around, people will vote against him.
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