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James Ker-Lindsay is Visiting Professor at the London School of Economics. His research focuses on conflict, peace and security in South East Europe (Western Balkans, Greece, Turkey and Cyprus), European Union enlargement, and secession and recognition in international politics.
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Donald Trump is going to jail.
That’s a whole big story in itself, the reason why Donald Trump is going to go to jail, I’ll talk about that a bit in a moment, but that’s not really the point. The real point is that Donald Trump is going to jail. And he’s going to jail soon.
That’s audio of the crowd at a Trump rally when he was running against Hillary Clinton shouting ‘lock her up’, one of dozens, probably hundreds of times that it happened. I don’t think that any but the most deluded of the people shouting really believed there was any chance that Hilary Clinton would actually be going to jail; someone once said that Trump’s detractors took him literally but not seriously, while his supporters took him seriously but not literally.
It might be because there’s been so much insincere talk about sending people to jail that I think people aren’t really taking seriously two things that are going to happen; I haven’t seen any commentator give a reasonable analysis of what I think are two important likely outcomes.
The second most important one is, of course, what do you do with the reality of having a candidate for president of the United States locked up in a federal prison cell, at the height of the election campaign.
But, much more important, and it’s getting even less attention; I talked on the podcast a while ago about how important it is, when you’re discussing any topic, to give some thought to what happens next.
Donald Trump is convicted in a federal court of serious crimes, he’s handcuffed, he’s led away to a prison van, and taken to a federal penitentiary where he may well spend the rest of his life. It would be a media event comparable with 9/11, but what happens next?
After the World Trade Centre attack, there was saturation coverage for weeks, but very few people were contemplating the what happens next that we have been living through for more than two decades now.
You might think ‘Trump going to prison? It’ll never get to that’. If you do, you’re not paying attention. First some basic facts. The US has a federal government, and a federal system of courts and prisons and criminal laws. Almost all cases are heard in state courts – murders trials like OJ Simpson, defamation trials like Amber Heard and Johnny Depp, and many less famous ones, they are all heard by state courts, under state law.
The FBI and the US Department of Justice investigate federal crimes, and despite their prominence in films and TV, their cases only make up a tiny proportion of all the trials in the US. For the Feds to get involved, the crime must be something that crosses state lines, like the Unabomber who posted his bombs from one state to another, or it must be an attack on the federal government itself.
So, in America, it’s pretty unusual to be charged with a federal crime, but if you are, your fate is pretty much sealed. Their conviction rate is truly spectacular. Of cases that come before the courts at all, even just for a preliminary hearing, about eight per cent of them are dismissed. Typically if they are dismissed, it happens early in the process, for some procedural reason – witnesses have become unavailable, evidence has been lost, or a search or other evidence is ruled inadmissible, and the trial is abandoned. That’s how about eight per cent of cases conclude.
But if you exclude them, of the rest of the cases where someone is charged with a federal crime, 99.6 per cent end with a conviction. Get that. If you can’t get your federal charges dismissed, you have a 99.6 per cent chance of being convicted – but that doesn’t mean you don’t get a fair trial; most likely you don’t get a trial at all. 97.5 per cent of cases end with a guilty plea, either with the hope, or in the case of a plea bargain, the promise of a reduced sentence. Only 2.5 per cent of cases go to trial at all; of that 2.5 per cent, 2.1 get convicted, and 0.4 get acquitted.
That’s right. The US federal courts acquit the defendant in one case out of every 250.
As I said, many cases end with plea deals, which adds to their success rate, because the feds are famous for what are called pyramid prosecutions, where they threaten lower-level criminals with many, many decades in prison, if they don’t flip, and give evidence against their crime boss; the more information they have to give, the better their deal. The feds are infamous for extracting the hardest of deals, insisting that if anyone deal, that deal depends on them handing over every scrap of information, every scrap of evidence they have. They then take that evidence and charge the next person up the criminal pyramid and repeat the process.
The American justice system is nothing to aspire to, but the surviving bosses of Enron, Worldcom and the other corporate scams are still in jail, while their opposite numbers in Ireland are enjoying their retirement on our millions.
Why am I so sure that Donald Trump is going to jail? He is currently facing two sets of serious federal charges, one for election interference, trying to get officials in Georgia to overturn his loss in that state, and one for stealing classified documents. And here’s a list for you take in. Deep breath.
Kenneth Chesebro, one of Trump’s former lawyers; Patrick Birney, the vice president of finance at the Trump organisation, Shawn Still a Georgia state senator, David Shafer, former chair of the Georgia Republican Party; Cathleen Latham, also of the Georgia Republican party; Yuscil Taveras, an IT worker at Trump’s Mar-a-Lago who was asked to delete surveillance tapes; Jenna Ellis, another Trump lawyer; the swivel-eyed Sidney Powell, who gave such insane conspiracy theories that even Fox News didn’t want her on any more, and lastly Mark Meadows, Trump’s White House chief of staff.
That’s the list of Donald Trump’s co-defendants who the federal prosecutors have already flipped like pancakes at the local Ihop. All their evidence is now available to the prosecution.
There is no doubt about who is at the top of the pyramid. And it’s very notable that Mark Meadows, who was at Trump’s side throughout his presidency, got the best deal of all, total immunity from prosecution. He didn’t get that unless he gave the prosecutors everything they wanted.
The trial for election interference begins on the 4th of March next year. That’s a Monday. The next day is Super Tuesday, when many states hold their election primaries. That’s only five months away.
Two months later, in May, the trial for stealing classified documents starts. Maybe Trump can be that one out of 250 who gets acquitted – but do it again? That’s asking to win the lottery twice. And even if he’s elected president from his prison cell, and pardons himself, Trump is also facing serious state criminal charges in New York, which a president cannot pardon. But I don’t want to focus on that.
I want to focus on what happens the day he is imprisoned. To be honest, I’m astonished that nobody is talking about this. Trump is still popular. He is currently ahead of Joe Biden in most polls. Even without majority, he still has legions of devoted fans, and a large subset of them are angry, armed and, to put it bluntly, insane.
In 1991, Rodney King was savagely beaten and electrocuted by a mob of dozens California policemen who, unknown to them, were recorded by a man testing out his new video camera. Several days later that man gave the tape to the KTLA TV station, and the shocking video was beamed across the world.
When the four policemen who led the attack were acquitted in questionable circumstances 14 months later, Los Angeles erupted in riots, which cost $1bn in damages and 63 lives. I don’t want for a moment want to compare the attack on Rodney King and the comeuppance that I think is coming for Trump, but I think it gives us some insight into the possible reaction to Donald Trump being led away in an orange jump suit.
But there are significant differences too. Firstly, it took nearly a week for the attack on Rodney King to come to public attention, and the reaction to the failed trial was relatively localised to poorer areas of Los Angeles. Trump’s trials will be held in the internet era of instant news. Hundreds of millions of people will watch the verdict live on their TV or phone. Many of them believe in persecution-complex conspiracy theories so insane that they would make Sydney Powell blush, and there is a strong correlation between those beliefs and access to powerful weapons.
Those conspiracy theories, along with Trump himself, promote distrust and resistance to the institutions of the state.
And yet, most of the commentary that I’ve heard that contemplates Trump going to jail has a ho-ho-ho tone of asking if he could run for president from a prison cell. Seriously? If – when – Donald Trump goes to prison, I’d question whether it’ll possible to hold an election at all.
