Make no mistake: Donald Trump is in deep legal trouble. The latest indictment, which brings him to a Washington DC courtroom today, is deadly serious. It accuses him of a conspiracy to overthrow a legal and fair election.
But it does nothing to stop him running for the presidency again. In fact his backers say, with some justification, that it makes it easier. Even if he were sent to jail before the election, Donald Trump could still run. Not only does the constitution allow it: a man called Eugene Debs actually did it.
Debs was arrested for speaking out against America’s involvement in the First World War. He was tried as a traitor in the summer of 1918 and sentenced to ten years.
In 1920 he won the nomination for the Socialist Party and ran under the slogan ‘For President, Convict No. 9653’. In an early example of a media stunt, of which Donald Trump would surely be proud, the newsreel cameras filmed a delegation from the Socialist Party arriving at the Atlanta prison to inform Debs officially of his nomination.
Debs did not win but he did get nearly a million votes and he blazed the trail when it comes to separating politics in America from the criminal law.
Donald Trump is on the same track in theory as previous presidential candidate Eugene Debs who ran while in jail in 1920, writes Justin Webb
Trump’s backers say his latest indictment makes it easier for him to stand again
Donald Trump is on the same track. In theory, if this latest trial is held quickly and he is convicted and imprisoned before the election, he could still run from prison.
Then, if successful, on his first day as president, take the oath of office in his cell and pardon himself — before being taken from jail to the White House.
More likely by far is that the case is delayed — along with the others against him — and that if he gets back into the Oval Office he either pardons himself or forces the Justice Department to drop the charges. This would not be the end of the matter of course. For many Americans, it would be a complete destruction of the norms of the constitution.
As the anti-Trump Republican and former George W Bush adviser David Frum put it: ‘It’s a formula for huge, indefinite, unlimited political crisis’. The question is whether the American people will intervene, via the electoral process, and put a stop to it all.
They have two chances to do so. The first is early next year when the primary elections take place for the Republican nomination for the 2024 presidential election.
Republicans might decide Trump — with an ever-increasing amount of baggage — is too big a risk.
But there is zero evidence that they will do this. Trump is way ahead in the polls of Republican voters and his biggest challenger, the Governor of Florida Ron DeSantis, has been an almost comically poor campaigner.
There is a long way to go before the first contest of the season, in Iowa in January, but the assumption right now is that the party will stick with Trump. The bigger contest is, of course, the full presidential election. And this is where the legal crisis and the political crisis come together.
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It is true that Trump has gained politically in recent months among already committed Republicans. But there is a problem for him and for those who back him.
He won’t remind you of it, but Trump lost in 2020. So to win this time around, he must persuade a number of Biden supporters, or some of those who stayed at home, to vote for him. The Trump act — the carnival — has got to attract new followers or it will fail again.
How likely is that? On the downside, candidate Trump would be dodging between rallies and court appearances.
The Washington Post claims his legal costs in the first half of this year alone were $40million. And that is before the cases really got going. His ability to function as anything like a normal presidential candidate would be hobbled.
But this is Donald Trump. And he is up against a president, Joe Biden, about whom voters also have severe misgivings. Biden looks all of his 80 years and more. After several slips he has stopped using the main steps of Air Force One. He recently seemed to confuse Ukraine and Iraq.
More seriously, his wayward son Hunter has failed in a bid to end his own court woes and causes his father a good deal of emotional and potentially legal anguish.
Hunter has a daughter he fathered in a brief tryst with a woman he says he doesn’t remember: Joe Biden was forced in recent weeks to admit that the girl is indeed his granddaughter, having ignored her for four years. For a man who campaigns as a twinkly grandad, it is not a good look.
So Biden and Trump, the rematch, is not easy to call in spite of Donald Trump’s deepening court troubles. A race between them would be a dead heat according to the respected New York Times/Siena poll which has just been released. Trump and Biden are both on 43 per cent.
Attendees react to Trump during a campaign rally in Erie, Pennsylvania
What makes it even more difficult to predict is the fact that presidential elections are not decided by floating voters nationwide. They are decided in a handful of states where the vote is close.
If a few thousand people in former rust-belt places such as Michigan or Pennsylvania decide to stay at home rather than vote for Biden, Trump could get in.
Many Americans on the Left have been watching all the court shenanigans and thinking, ‘bring it on!’. They want Trump to run because they believe he would be a joke candidate. But as the legal baggage mounts up and the political strength seems undiminished, they are beginning to think again. The best summary of the new position came from Jonathan Swan, a New York Times reporter who is no friend of Trump, and who wrote a piece about what a second Trump White House might try to achieve.
Swan tweeted: ‘I can’t tell you how many otherwise smart people have chastised us for going deep on what Trump and his allies plan for 2025 because ‘he can’t win a general election’. Pure wishcasting.’
Swan is probably right. America is waking up to the fact that, though Donald Trump is in huge legal trouble, he could still be re-elected next year. Even imprisonment might not stop him.
Something many Americans dismissed as a bad dream, a fantasy, could be about to come true. And nothing that happens in the Washington DC courtroom today changes that political fact.
Justin Webb presents the Americast podcast on BBC Sounds.
