Mainstream journalists have to be responsible. They can’t overstate things.
When an earthquake strikes, the first sentence in a legitimate newspaper says, “A magnitude 7.2 earthquake hit Shangri-La. Tens of thousands of buildings have collapsed. Thus far, three people are confirmed dead.”
But irresponsible journalists — such as, say, me! — are not similarly constrained. Instead of careful responsibility, we’re allowed to use common sense. I could write, for example, “Get a load of that earthquake. By the time they finish sifting the rubble, I bet we’re gonna learn that thousands have died.” My statement may not be careful and responsible, but it’s true.
That’s why I was able to tell you the verdict in the E. Jean Carroll case before it happened: Real journalists were constrained to wait for the verdict; I could use my common sense.
It’s the same with the recent indictments of Trump: Real journalists have to say, “Trump is, of course, presumed to be innocent. Until a jury says otherwise, he is not guilty.”
I’m not constrained by any such nonsense.
I’m using my common sense now to tell you two things. First, Donald Trump is going to jail. Second, you’ll have to read through to the penultimate paragraph of this column to find out my other prediction.
I don’t guarantee that Trump is going to jail as a result of the pending New York State criminal case involving Stormy Daniels. Don’t get me wrong: That’s a terribly hard case for Trump; the prosecution does, after all, have copies of the checks that Trump himself signed and the business records that misconstrue those checks. But maybe there will be some problem with the state’s legal theory, or maybe the trial will be postponed to beyond the election, or maybe a Trump loyalist on the jury will refuse to vote to convict. There’s a strong chance Trump ends up in jail for that case, but it’s by no means guaranteed.
Nor do I guarantee that Trump is going to jail because of the Mar-a-Lago indictment handed down last week, involving mishandling of classified documents. Don’t get me wrong: That’s a terribly hard case for Trump; the prosecution does, after all, have:
1. Trump’s own incriminating words on tape, with Trump telling folks with no security clearance to look at a classified document;
2. The other witnesses who were in the room when that tape was made, all of whom will presumably say, “I did not have security clearance, and Trump was showing us the classified document”;
3. Photographs of improperly stored documents;
4. Testimony from employees of “The Office of Donald J. Trump” saying that Trump engaged in improper conduct; and
5. Trump’s own lawyers saying that Trump engaged in unlawful conduct, among many other things.
Moreover, Trump and his supporters have had almost a year to provide a legal justification for what Trump did, and they can stammer no more than, “We think Biden did something similar,” and “Hillary’s emails!” — both of which are great fun, but neither of which means Trump should not go to jail.
(The fact that Trump, knowing the he was being tape-recorded, and in front of multiple witnesses who would later tell the truth, pulled out a classified document and showed it around, suggests one other thing: If there were a section of the United States Code that allowed prosecutors to indict people for “criminal stupidity,” there would be an extra count in the Trump indictment. I’d say that Trump has the IQ of a grapefruit, but that unfairly disparages grapefruits.)
But maybe Trump will somehow avoid prison in the Florida case. Maybe Judge Aileen Cannon will postpone the trial until after the election; maybe she’ll rule in favor of Trump on every pretrial motion that he files; maybe a Florida jury will include at least one Trump loyalist, who won’t vote to convict, no matter the evidence. There’s an extremely strong likelihood that Trump ends up in jail for these charges, but it’s not absolutely guaranteed.
No, no, no: I make my guarantee only because at least one more indictment, and probably two, will soon be handed down. Fani Willis, the Fulton County, Georgia, district attorney, has essentially announced that Trump will be indicted in Georgia in early August. Again, that case will not be a cakewalk for Trump: Prosecutors have Trump’s own words on tape trying to strong-arm Georgia officials into changing the election result. And Special Counsel Jack Smith is likely to indict Trump for his conduct on January 6, 2021. That case may be complex and take a while to try, but it’s again pretty tough to defend: The Capitol Building was ransacked for nearly three hours, and Trump did absolutely nothing to stop the carnage. Indeed, Trump now says that, if elected again, he’d probably pardon most of the rioters. Use your common sense: What was his motive on January 6?
So Trump is likely to be facing four criminal trials next year. Each one of those trials, independently, poses a huge risk to Trump. But even if he manages to beat the rap once or twice, it’s almost inconceivable that he’ll beat the rap four times in a row. That’s just rolling the dice too often. Thus, Trump is going to jail: You read it here first.
Sadly, here’s my second prediction: Joe Biden will be indicted after he leaves office. Don’t get me wrong: I don’t think Biden has done anything criminal. And, even under a hypothetical Republican administration, I still have enough faith in the career lawyers at the Department of Justice to believe that they would block any attempted federal prosecution of Biden. But the New York case against Trump is precedent for any local district attorney in any state anywhere in the country indicting Biden for anything.
There are over 2,300 chief prosecutors (district attorneys and similar prosecutors who go by different titles) in the United States. Suppose that only half of those prosecutors are Republicans; we’re down to 1,100 prosecutors. Suppose that half of those prosecutors are insane Trump loyalists; we’re now down to 500 prosecutors. Suppose that a few of the remaining 500 prosecutors were elected in districts where Democratic constituents (or jurors) might restrain them. We’re still left with literally hundreds of chief prosecutors, all of whom could instantly become nationally prominent if they indicted former President Joe Biden for something, anything.
I’d say the odds of Biden not getting indicted are about the same as the odds that Trump does not end up in jail.
America is now in a very sorry place.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at firstname.lastname@example.org.