Clark Neily
Up until now, I’ve been hesitant to predict how the various prosecutions of Donald Trump are likely to turn out. But no longer. I believe yesterday’s indictment in Georgia sealed Trump’s fate, and it is now all but certain that he will be convicted of multiple felonies in one or more of the four pending cases against him. Here’s why.
The Georgia indictment is a bombshell—the equivalent of a Texas Hold’em poker player shoving their entire stack of chips into the middle of the table and declaring, “All in.” In sum, the Georgia indictment alleges that Trump orchestrated a sprawling criminal conspiracy (or “enterprise,” in the language of the indictment and Georgia’s state RICO statute) involving more than 20 named and unnamed co‐conspirators ranging across half‐a‐dozen states for the purpose of unlawfully changing the result of the November 2020 presidential election. There is nothing subtle or nuanced about this indictment—in effect, it accuses Donald Trump, Rudy Giuliani, Mark Meadows, John Eastman, Jeffrey Clark, Sidney Powell, and a dozen others of staging an unsuccessful coup. If the case goes to trial, which seems likely, the jury will either believe that characterization or they will not. I think they will, for three reasons.
1. Trump’s disdain for truth. America has seen its fair share of lying politicians, but Donald Trump is in a class of his own. He appears to view literally any interaction with another human being as an opportunity to be exploited and a game to be won. In Trump’s world, rules are for chumps, norms are for losers, and the truth is whatever you can get another person to believe— nothing more. And of course, history makes clear that this approach has been quite effective at advancing Trump’s interests in certain settings—preening on the set of a game show, for example, or spinning up a fawning, frothing crowd at a campaign event.
But not only will those antics not work in a courtroom, they will backfire. Given the nature of the allegations against him, Trump will have to take the stand even though he has a right not to, and given his nature, he will lie to the jury just like he has lied to everyone else his entire life.
Trump will look those jurors in the eye and tell them that not only did he believe the election was stolen at the time, he still believes it now and in fact it was stolen. And Trump will double down on his risible assertion that his post‐election harangue of Georgia Secretary of State Brad Raffensperger—during which Trump demanded that Raffensperger “find” 12,000 votes in order to flip the result there and suggested that Raffensperger might be committing a criminal offense if he failed to do so—was “an absolutely PERFECT phone call.” Moreover, some of Trump’s co-defendants—Mark Meadows, perhaps, or Jeffrey Clark—will cut deals with the prosecution to save their own skins, and Trump will, with great bombast and zero credibility, falsely accuse them of lying when they testify honestly and plausibly about who said and did what.
At the end of the day, the jury will have to decide who was lying to them—a parade of credible and often highly sympathetic prosecution witnesses, or Donald Trump—and he will make it easy for them.
2. Trump’s disdain for process. Again, Donald Trump doesn’t see the world the way normal people do. Instead of institutions to be respected and rules to be followed, he sees marks to be gulled and systems to be gamed—emphatically including elections and trials. Trump’s complete disdain for fair procedures—and for people who meekly accept the results of those procedures when they lose—will be on full display throughout every stage of all four of the criminal cases against him. As we have already seen, Trump will not be able to resist the temptation to manipulate the process by threatening or cajoling witnesses, insulting prosecutors, and slagging judges who rule against him. Then, having displayed nothing but contempt for the proceedings, Trump or his counsel will turn to the jurors at the end of each trial and remind them of their solemn civic duty to carefully consider the evidence, arguments, and burden of proof—and render a verdict of acquittal. The jurors will remember their civic duty, alright, and they will condemn Trump for disregarding his.
3. Complexity. The third reason Trump will be convicted in one or more of the cases against him is this: complexity. Litigation is a complicated process featuring an often mind‐numbing interplay of procedural rules, substantive laws, court filings, documents, discovery, fact witnesses, expert witness, and a constant procession of unforeseen twists and turns that evoke the maxim that no plan survives contact with the enemy. And that complexity multiplies geometrically with the number of related proceedings going on at the same time, which means that Trump’s legal teams will find it nearly impossible to coordinate across all four of the ongoing prosecutions in New York, Florida, DC, and now Georgia. But it’s even worse than that.
Litigation complexity is hard enough to manage with a client who plays it straight, both with the court and with their own counsel. But Trump doesn’t play it straight—he never has, and it appears he’s constitutionally incapable of doing so. So he will lie: in court, in public, on social media and—fatally—to his own lawyers. Simply put, Trump’s defense teams will not be able to keep track of all the different positions their client has taken (or directed his various lawyers to take in different proceedings), and eventually things will come completely unraveled. Judges will become increasingly disgusted by the shenanigans and stop giving Trump any benefit of the doubt; there will also be internecine squabbling among members of his defense teams, and some will likely quit when they refuse to execute some of their client’s more unethical demands or realize that he has no qualms about taking them down with him when the time comes.
One last point. These three dynamics are not isolated and discrete; instead, they’re dynamic and mutually reinforcing. Being an inveterate liar is a major liability in litigation. So is being openly disdainful of the entire process. And so is complexity. But put all three of those together at the same time for the same defendant, and his goose is cooked. So you can put a fork in Donald Trump—he’s done.