Watching Donald Trump being arraigned in Miami Tuesday is a snapshot of America. Blue America wants Trump prosecuted for his crimes against the republic. Red America believes Joe Biden wants to off his rival. Would the two sides pause at the courthouse steps, retreat to a back room, and negotiate a settlement?
Each side is sure that they have a better hand, although Special Counsel Jack Smith really does. He has the cool confidence that comes with a damning case—tapes, texts, and emails (even from Melania and his own lawyers) about military planning documents. The prosecutor even had enough evidence to indict Walt Nauta, a personal aide delivering the boss’s Diet Cokes since the White House days, and detail his moving 100-plus boxes from an unsecured bathroom to an unsecured bedroom to a public ballroom. Nauta may be Allen Weisselberg, willing to go to prison to protect Trump, or possibly Michael Cohen, spilling the beans. Either way, Smith has contemporaneous notes from meetings with Trump where the former commander-in-chief wonders if it just “wouldn’t be better if we told them we don’t have anything” and asks whether Corcoran could see his way to destroying evidence.
Former Attorney General Bill Barr, who spent most of his time at Justice protecting the Trumps, concluded that if half the charges in the indictment are true, “he’s toast.” Trump immediately threw fat insults at his once loyal lieutenant, oblivious to the hypocrisy. Unlike Barr, most Republicans still won’t criticize someone who controls at least a third of their party and might call them names. Senator Lindsey Graham was close to tears defending his buddy on ABC. House Judiciary Committee Chairman Jim Jordan swung wildly from making no sense to lying. He talked over CNN’s Dana Bash, and she had few opportunities to correct him. He claimed that Trump could handle top secret documents “however he wants. If he wants to store material in a box in a bathroom, in a box on the stage, he can do that.” When Bash pointed out that he couldn’t and that Trump even admitted he could no longer declassify documents, Jordan insisted he could.
Even if the prosecution has a good chance of burning Trump to a crisp, should they if the cost is another spasm of hate convulsing the country? As a practical matter, Smith’s case is no longer the slam dunk it was now that they’re trying it in South Florida, where the chances of a few MAGA loyalists faking their way through voir dire and onto the jury are higher than in Washington, D.C. They couldn’t have drawn a worse judge to preside over the arraignment than Aileen Cannon, a Trump appointee who’s already been overturned twice for showing bias in favor of the man who elevated her. It would be a travesty, but she may preside over the trial.
A trial in the middle of the 2024 campaign will distort it beyond recognition. Trump is free to compete for the presidency and serve from jail if elected and convicted—all because the Founders couldn’t imagine a man shameless enough to run for reelection after instigating a deadly attack on the Capitol to overturn an election he lost.
It’s time to plea bargain and avoid a trial that will not bring closure but rather more angst. Smith could get his guilty verdict, and still, Trump wouldn’t pay his debt to society—not because he’s above the law but because Secret Service protection for life is inconsistent with being handed over to the Bureau of Prisons. He’d be in danger if put in “gen pop” at a medium or high-security facility, so it will be at a Club Fed in the unlikely event he serves time. How dispiriting is that?
The indictment has already elicited threats of violence. Kari Lake, the former newscaster who almost became governor of Arizona, told a rally that there were 75 million Americans as angry as her, most of whom are card-carrying members of the NRA. Trump talks about Smith’s wife in tones one of his unhinged adherents could see as a green light for violence. Far-right members of Congress are sending out bulletins reminiscent of January 6. “We have now reached a war phase. Eye for an eye,” tweeted Representative Andy Biggs. Representative Clay Higgins tweeted about a “perimeter probe” and wrote, “Hold. rPOTUS has this. Buckle up.” Translated, rPOTUS means “real president of the United States.”
Smith has the country to think about. Trump doesn’t care about America but cares that a jury could deprive him of his golf, liberty, and the pursuit of grudges. Over the weekend, the former president said it was “sick” how much he, amazingly, liked the indictment, but later, reality dawning, he took it back.
I’ve been away from the law for years, but if Trump were my client, right after telling him to keep his mouth shut, I’d urge him to consider pleading not guilty by reason of temporary insanity. What better proof of decreased capacity than that he still believes he’s president?
Unlike many defendants, he won’t have to fake it by donning a tinfoil hat or listening for voices in his gold filings because it’s obvious he’s not all there. At his inauguration, he insisted the sun was shining before the largest audience ever assembled, who were holding umbrellas for some reason. The pandemic was no more serious than the flu and likely treatable with bleach. His response to climate change was that windmill noise causes cancer. Trump was Mr. Protect Our Secrets during his 2016 campaign until he became Chatty Cathy with nukes.
Could he be dumb? It seems like it when he didn’t play nice, as Mike Pence and Joe Biden did, swiftly returning documents when asked by the National Archives. There doesn’t appear that there’s a buck to be made on the collector’s market for gas export projections unless billionaire Harlan Crow, Clarence Thomas’s benefactor, wants to display NSA files amid his Nazi memorabilia. It’s hard to believe, but it seems, for now, the mercantile huckster brought all this trouble on himself for no gain other than having conversation pieces and trying to prove it was General Mark Milley, chairman of the Joint Chiefs of Staff, who wanted to attack Iran, not Trump. The former president is still fuming over Milley reportedly saying he limited Trump’s military authority because he was manic and no longer “of sound mind.” Rather than commit grand larceny to prove he still had presidential prowess, Trump could have stamped a ream of letter-size stationery “Top Secret” and waved it around as if he’d just pulled it out of his “For Five Eyes Only” file.
Anything is better for the commonweal than another trial of the century rivaling O.J.’s. The author of The Art of the Deal should take a deal. It would be painful to watch Trump get off with a dainty ankle bracelet, a Mar-a-Lago confinement with golf and sirloin instead of Lewisburg with metalwork and bologna sandwiches. But if Smith, fresh from The Hague, gets this world-class criminal to forego running for office and accept house arrest, that might be justice enough.