Jurisprudence
Pundits are reading these shifts completely wrong—this is exactly the kind of movement that could determine the election.
Photo illustration by Slate. Photos by Shelby Tauber/AFP/Getty Images, Brendan McDermid/AFP/Getty Images, and Giggle/iStock/Getty Images Plus.
Four days in, and with the jury just selected, those in the commentariat class are already ready to offer their closing arguments in Donald Trump’s New York criminal trial. Most of the naysayers are lawyers. Some of them doubt that Trump will be found guilty of even a misdemeanor, much less a felony, for his alleged crime of illegally offering hush money payments to hide an affair he had before the 2016 presidential election. They question the soundness of what they deem a rather novel legal theory—elevating the minor crime of falsifying records into the more serious charge of doing so in furtherance of another crime. Others are just exhausted. Our Slate colleague Richard Hasen, in the L.A. Times, declared, “I have a hard time even mustering a ‘meh.’ ” It’s understandable to feel jaded by what has been a yearslong process, with Trump seeming to evade accountability every time—but dismissing this case is precisely the category error that holds that what lawyers believe about legal verdicts is somehow predictive of political and electoral outcomes.
And it’s not just the lawyers. The pundits are also certain they know how the public will think about a trial that’s barely begun. They’re sure they understand how it will affect a vote that remains 200 days away, and they are bringing in survey data to back up their claims. ABC News thus declared, “The polls suggest that a guilty verdict would be unlikely to have a big influence come November,” citing as evidence the fact that “just 35 percent of independents and 14 percent of Republicans” believe that Trump is guilty in the New York criminal case. As further proof that Manhattan District Attorney Alvin Bragg’s efforts are going to be electorally inconsequential, they go on to reference a Quinnipiac poll showing that only 29 percent of voters would be less likely to support Trump upon a conviction in this criminal trial.
And, sure, all of these are in fact numbers, and they are indeed less than 50 percent, and, yes, we’ve been told many, many times that it takes that plus one to win an election. But this is where so many political analysts have either memory-holed how presidential elections actually work in the U.S. or are demonstrating that motivated cognition is one hell of a drug. Because for Trump to lose this election, it does not require over 50 percent of people to say that this trial would flip their vote. Many people are already absolutely determined not to vote for the criminal defendant. As in 2016 and 2020, the 2024 election will come down to margins of 1 or 2 percentage points in just six states. In this game of winner takes all, even by a hair, dropping “only” 9 percent of your base upon a Bragg conviction—as the most Trump-favorable poll testing the stakes of this case reports—means you would lose the election.
Thus, while it is absolutely the case that 36 percent of independents saying that a guilty verdict would move them away from Trump is less than the 44 percent saying it wouldn’t, when your vote total is presently neck and neck and electoral precedent says it will come down to the wire, you cannot afford to lose anyone, let alone over a third of the gettable voters. That 36 percent matters greatly.
And so, those who are dismissing the electoral consequences of this criminal trial by declaring that events in Manhattan over the next few weeks will merely animate Trump’s base—a base that will see this trial as yet more proof of the Deep State’s (™) persecution of their Lord—are also demonstrating a fundamental misunderstanding of electoral math. You cannot mobilize the voters who are already absolutely voting for Trump to any greater heights. No matter how rabid their fury, and how bottomless their sense of shared grievance, they still get only one vote each—at least until they figure out how to commit the voter fraud they love to decry on a broader scale. The rank and file in the tank for MAGA cannot become more impactful.
It’s important to remember that this is really an election interference trial, with a crucial trifecta of sex, money, and voter deception. So, yes, the public opinion data is one way to understand the influence—and in fact, it points toward this case being quite consequential. But the larger, as yet unquantifiable element of this criminal lawsuit currently playing out in the midst of a presidential election is the story it transmits. The trial is a long-awaited step toward accountability for a presidential candidate publicly performing the role of criminal defendant, sitting reluctantly before a jury of other Americans. This telegraphs a very loud tale about him and, more importantly, the stakes of this election. We don’t yet understand the effect that part will have on voters—it hasn’t happened yet.
Where the civil trials against Trump got newspaper write-ups, this criminal trial is receiving the full television and social media meme daily bonanza. Americans are a uniquely Law & Order–obsessed people: They love jury selection and objections and closing arguments and are captive to this uniquely American notion that there is something about landmark “trial of the century” events worth watching. This means that voters who only barely register the drumbeat of political news will still see a man they are supposed to consider the potential leader of the free world falling asleep, muttering threats at jurors, and generally looking sad and trapped and small. And if he is declared guilty, this process will render him, in many voters’ understanding, a criminal.
What the political pundits and legal scholars who are now parsing the electoral consequences of this case seem to have forgotten is that elections center on grand, sweeping tales, not the arcana of case law and criminal liability theory. Big moral narratives sound like “Morning in America” and “Yes We Can” in the affirmative, or “Swift Boat” and “47 percent” and “her emails” in the most damning. And this trial is part of that arc, about a man absolutely determined to seize and hold power, no matter how, with explicit details about hidden bank accounts and pulling one over on voters to game an election.
Finally, while there’s understandable interest in examining how traditional swing voters will respond to the Bragg case, it’s critical to remember that these electoral unicorns are on the 2024 endangered species list. This election isn’t just the usual “take to your partisan corners” contest; it’s a rematch between the same two contenders we know all too well. Virtually no one is still deciding between Trump and Biden. And what “gettable” voters are contemplating is, in broad strokes, whether to participate at all in this election. These “double haters,” folks who are turned off by both top contenders, are tuned out of this election. The question then becomes what would get them off the sidelines and into viewing the very real stakes, stakes that make turning out to repudiate Trump imperative. What Trump on trial—and the constant barrage of chatter about it—ultimately does is clue these weary citizens into the actual consequences of this election. It changes the narrative from a tale of two old men, neither of whom they find appealing, into the possibility that a convicted criminal will be deciding which laws, if any, apply to him and also to everyone else. This, for everyday voters residing outside the commentariat, is what can become core to politics: a story of morality and possibly even some game-changing theater.
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