Analyzing Trump’s Guilty Verdict and the 2024 Election Outlook

Transcript:

Stuart Shapiro
Welcome to EJB Talks. I’m Stuart Shapiro, the dean of the Bloustein School. And the purpose of this podcast is to highlight the work my colleagues and our alumni are doing in the fields of policy, planning, and health. This is our last episode of the 10th season of EJB Talks.

And this has become a bit of a tradition here. We’re going to conclude with me mostly talking about politics and where we stand as we head into what is likely to be a momentous, contentious, and controversial presidential election. We waited a bit to tape this episode, because we knew that the trial of Donald J. Trump in New York City was nearing its conclusion and wanted to wait until it was over. And last week, it ended with 34 guilty verdicts. And so, back to feed me questions and make sure I don’t go off the rails in talking about this is our former producer Amy Cobb. Welcome back Amy!

Amy Cobb
Hey! Well, I feel like there is no other way but to go off the rails.

Stuart Shapiro
We went off the rails a long time ago.

Amy Cobb
Yeah, we did. I mean, we’ve been, we’ve been way off the rails for a long time.

Okay, I’m just gonna dive right in. I hate the use of the word unprecedented. I think we are… this is “precedented” at this case. It’s always something new with this former presidential candidate. Okay, so Donald Trump was found guilty. Can you briefly just tell us of what, in this particular case?

Stuart Shapiro
Well, it is unprecedented. A president has never been found guilty of felony charges before. And a nominee of one of the two major parties has never been running as a convicted felon before. Donald Trump, in the first of the four criminal trials that he faces, was found guilty last week in New York State court on 34 counts of falsifying business records. And before we go down the, “well falsifying business records, that’s kind of boring and and trivial,” these are records that he falsified in order to cover up the fact that his attorney, Michael Cohen, was paying Stormy Daniels, the adult film actress, to stay silent about her affair with Donald Trump. And the fraud he committed was reimbursing Michael Cohen, and not reporting that as a campaign expense. So essentially, not only was it financial fraud, but it was election fraud. And…

Amy Cobb
So I have a quick question. I had heard that if he had paid her himself, it would not have been… it would have been a moral issue for some, not for many, but it would not have been a legal issue. Is that correct?

Stuart Shapiro
That is probably right. I don’t know election law well enough to say for sure. But the last time Donald Trump paid his own bills was a long, long time ago. ((laughing)) And so, it’s not really a terribly realistic, “What if?” right? So it is…. but he didn’t and so yeah, it counts as election fraud, it counts as financial fraud, and 12 jurors agreed with that.

Amy Cobb
Okay. So, did this verdict actually surprise you? I had heard that this was also seen as the weakest case that is currently brought against Trump? And the quickness of the vote.

Stuart Shapiro
Yeah, no, I wouldn’t say… surprised is probably strong. I do think it was the weakest case. The legal theory, connecting the fraud to the underlying crime of election finance violations, has never been tried before and was seen as somewhat tenuous. We should never forget however that in the U.S. justice system the prosecution always has an advantage. And particularly once you get to trial. And so the fact that it was a rich white guy as the defendant makes it seem like “Oh, I’m surprised he was convicted.” But the reality is, most people that go to trial, most people that face charges, end up either pleading guilty or being found guilty. That’s just the way the criminal justice system works. And that’s a problem for a separate podcast. ((laughing))

But yeah, you know, and the speed of which… it wasn’t too surprising, either. I was telling my family that look, if this goes into next week, and this was last Wednesday or Thursday when when the verdict was handed down, then they’re probably trying to convince one or two holdout jurors, and it’s not going well. If we’re going to get a guilty verdict, I expected it on Thursday or Friday. And indeed, we got it late Thursday afternoon. That said, the three cases that are…well, two of the three cases that are remaining, I think, if and when they ever get to trial, are even more likely to result in guilty convictions for Donald Trump. The Georgia case is complicated. That almost falls in a separate category.

Amy Cobb
Okay, so that being said. What a surprise that that verdict, verdicts got his base fired up. And that’s not really that remarkable considering they seem to be fired up about a lot. But I hate the term swing voters. I don’t necessarily think there’s a lot of them, but maybe I’m wrong? But what’s the potential impact on those swing voters? Not only just the verdict, but how it’s being played out currently in politics and press?

Stuart Shapiro
So we don’t know, is the short answer. Let’s put aside…

Amy Cobb
That’s not helpful, Stuart! ((laughing))

Stuart Shapiro
Well, I’m gonna give you more, but I wanted to at least say that upfront. ((laughing)) Let’s put aside one idea, however. The idea that this helps Trump. That is flat out ridiculous. There is no way being found guilty of 34 crimes is going to get people to say, “Ooh, that’s the guy I want!” ((laughing))

And so you’re not going to see a boost for Trump. And indeed, the early polls are not showing that. The question instead, and it’s gonna take months to answer this is, Does it hurt him? And if so, how much? And the answer we get this week is not necessarily the answer. We have five months from now on election day. And let me… that could cut either way. And let me explain what I mean by that. You know, right now, the verdict is in the news, right? And so in some sense, you might say that this is the worst it’s going to get for Trump. We’re going to see a bounce against him. And then those people that were previously undecided, will move back to being undecided or will move over to Trump like they would have anyway.

On the other hand, both campaigns will have something to say about this. How this verdict is portrayed by both campaigns and the degree to which the Biden campaign can successfully keep it in the news and keep it in the front of people’s minds will hurt Trump. And the extent to which the Trump campaign can say in the words of the former president, “this was a rigged trial,” and therefore not legitimate and convince people. That will move people back to where they were.

Amy Cobb
That’s his favorite thing, “rigged.”

Stuart Shapiro
Oh, he loves the word rigged. Well, only when he loses.

Amy Cobb
Yeah, that’s true! That’s very true! ((laughing))

Stuart Shapiro
But I do want to sort of talk about your your swing voter piece for a second here. First of all, this election is supremely close. So if there are five swing voters out there, it matters how we affect them. And there are a lot more than that. Right now, Robert F. Kennedy, Jr. is polling at 9%, I believe.

Amy Cobb
That’s terrifying.

Stuart Shapiro
And right now, there are a lot of people…. there are people that are undecided. That’s another 5 or 6% in the polls. So that’s 14, 15% of the electorate who could be affected by this news. And therefore would characterize them as swing voters. And both Biden and Trump have weak… have some weak support. Some people who are holding their noses and voting for them. This will not affect, I don’t think the people holding their nose and voting for Biden, but it could affect the people holding their noses who right now say they are going to vote for Trump. So we’re talking close to 20% of the electorate that could be affected, in one way or the other, by this decision. It’s not to say all of them well. It’s not even to say a majority of them will. But if even a small number of them will, in a close election like this, that could make the difference between who wins in November.

Amy Cobb
This feels eerily reminiscent of the first Trump campaign. And I think some of us are still a little shell-shocked from that, although I think Biden faces some of the same challenges, especially from younger voters?

Stuart Shapiro
Yeah, it’s, you know… every election is different. We always try to analogize to a previous election. And it’s particularly tempting when you have the same two candidates as the last one. And so the clearest precedent you should have is 2020. And of course, Biden won. And Biden won by 7 million votes. It was closer, obviously, in the electoral college. But if you’re going to pick an election to analogize to, that’s your best bet. But every election is unique. This won’t be 2020. But it won’t be 2016 either. It will be an election that is determined by factors unique to 2024. That includes the fact that we’ve got the two oldest candidates ever to run for president in Biden and Trump. It includes the fact that the economy is basically good, but the people still have concerns about inflation. Legitimate concerns, frankly. And it will include the fact that one of the candidates, and I will repeat this as many times as I have to over the next five months, just got convicted of 34 felony counts. These are the factors that will determine the 2024 election, plus some things we don’t know about.

Amy Cobb
I was just about to say, there’s plenty of time!

Stuart Shapiro
There’s still five months. Trump has to pick a vice president yet. I don’t expect that all major difference in the campaign. We all know what the sort of general contours of his pick will look like. Somebody that is willing to rush to a microphone to defend whatever he does and says. It’s pretty much the only criteria, or the key criteria for him. And so there’s that. There are the debates, which I don’t think will happen, frankly.

Amy Cobb
Right. And I was curious about that, too.

Stuart Shapiro
Yeah, I don’t see that there are the inevitable verbal gaffes and slip-ups that will happen when you have a 77-year-old running against an 83-year-old. Or 79 and 83, I don’t even remember, some ridiculously high number. And both of them will say things that cause those swing voters to pause as they think about their electoral choices. So there’s still a fair amount to happen. But I don’t know that anything as big will happen as what happened last week. Probably the most important event of the 2024 campaign happened last week. And whether that’s enough to make a difference, we’ll see. The Supreme Court decision happening next….

Amy Cobb
Ah, I was just about to ask about that. Do you think they’re gonna make the decision? Because I’ve heard ….

Stuart Shapiro
They have to make a decision, there’s no….

Amy Cobb
They have to. And what do you think they’re swaying towards?

Stuart Shapiro
So just to be….

Amy Cobb
I mean, just as a crystal ball?

Stuart Shapiro
Yeah, just to refresh everyone’s memory. This is one of the four criminal, one of the other four criminal cases in which Trump has been indicted. And this is….

Amy Cobb
That’s just terrible, by the way. Can we just put that aside? Four!

Stuart Shapiro
And it should be more frankly. But… and this was the most serious of the cases. This is the case stemming out of initially, the Liz Cheney committee hearings about Trump’s role in the capital riot on January 6, 2021. And the degree to which he is criminally liable for the events of that riot. The Supreme Court is hearing two cases, actually, which impact Jack Smith’s prosecution of Trump. Trump is being brought up on four charges with relation to the January 6 trial. The big case, the high profile case, is that Trump claims that because he was president, he has absolute immunity from prosecution for any actions that he took in furtherance of his role as president. And that everything he did on January 6 was in furtherance of that role. Before the case was heard, I found it highly unlikely that the Supreme Court would rule for Trump. I now find it less unlikely but still probably borderline unlikely that they will rule for Trump.

Amy Cobb
I realize people can’t see my face, but I’m making very unhappy faces.

Stuart Shapiro
Yeah some of the questioning in the hearing was towards was towards the end of looking to find justification for giving Trump immunity. But whether or not you had five justices that bought into that, I think that is much less certain. I do expect that Alito and Thomas and probably Gorsuch will vote to give Trump mostly immunity. The question is, do Roberts, Kavanaugh, and Barrett bracket off some of the things that Smith is charging Trump with from prosecution? I don’t think they’ll bracket off everything. I think the Smith hearing will then progress after the Supreme Court reaches the decision, which will be in June or the first week of July. It’ll be before July 4, for sure.

Amy Cobb
Oh, boy. ((laughing)) Oh, boy. What a wonderful gift!

Stuart Shapiro
I should note, though, and this gets much less attention. There is a second case before the Supreme Court, not in which Trump is the defendant, but rather in which some of the January 6 rioters are the defendants….

Amy Cobb
Oh, that’s right, that’s right.

Stuart Shapiro
…and whether or not you can use the Sarbanes Oxley law which was meant to curb corporate crime. But has a obstruction of Congress provision in it and has been used to jail quite a few of the rioters. Whether or not that is a legitimate use of the Sarbanes Oxley law. And it could be that the justices rule that it is not. Most of the January 6 rioters will stay in jail because they’re in jail on other charges as well. Smith’s case against Trump will drop from four charges to two if if they bracket that off. And that I see as at least a 50/50 proposition. So, expect to see that as well. And it may be a way that Roberts puts the baby, if you will. Taking away two of the charges, while not giving Trump immunity from the other two. It would not surprise me if that’s where we come out. But again, that’s that’s just crystal ball gazing.

Amy Cobb
So happy 248th birthday, America. Put that on your gown. ((laughing))

Stuart Shapiro
So yeah, that’s where I think the Supreme Court cases stand. The other two cases, just as a footnote. The documents case, Judge Eileen cannon has pretty much ensured that that will not be heard before the election. And the Georgia case is such a hot mess.

Amy Cobb
That’s a nice way to put it.

Stuart Shapiro
There’s no way that is getting heard before the election. I would be surprised if it started in 2025. Let’s face it, if Trump is president, none of this matters.

Amy Cobb
Right.

Stuart Shapiro
But if he loses, then these cases move along. The Georgia case, though, won’t move along till late 25 or sometimes in 26.

Amy Cobb
Okay, I’m going and I asked this generalized question, but I don’t even know if I want you to talk about it, because this is just all giving me a stomachache. I need some Tums. What do you feel in, in all reality, that the road looks like as we go towards November and beyond? And I think maybe part of it is, you know, you’ve always been level-headed about these things. We certainly got through the Trump administration where already, I can’t believe through the first four years of Biden. You know, are these possible impacts?

Stuart Shapiro
So what do I think the election looks like? Yeah, no, I mean, look, we are a bitterly divided country and a very closely divided country. I’m sure I’ve said that in response to questions you’ve given me on previous episodes of the podcast. Elections are going to be close for the foreseeable future. And this one will be no exception. You know, I’ve been saying it was 50/50 you know, for a long time now. Since it was clear Trump would be the nominee again. And I think last week’s news moves it to 52/48 or something along those lines for Biden? I think Biden is possibly a slight favorite right now?

Amy Cobb
((laughing))

Stuart Shapiro
But the election is going to be close. It is going to come down to probably the three Midwestern states, possibly a few others that that could be in play as well. And you know, it will not be settled on election night. I again, though, I will tell you one thing. In 2020 I was telling people in the week or two before the election. Don’t be worried about the election results Biden’s gonna win. Be worried about what happens after.

Amy Cobb
I do remember that, because we even talked about it on a podcast. Yeah.

Stuart Shapiro
And at the risk of tooting my own horn, boy was 100% right.

Amy Cobb
You were! It was really bad, actually.

Stuart Shapiro
So what I will say this time is, you know, continue to be worried about the election. It’s close, it’s very close. But if Biden wins, be very worried about what happens afterwards again, It would not surprise me to see a repeat. From Trump’s perspective, the stakes are higher for him than they were in 2020. In 2020, you know, he wouldn’t be president anymore. And he obviously didn’t like that it, it interfered in his narcissistic view of how he’s always right. And the world always does what he says.

But in 2024, particularly with last week’s verdicts, the case for Trump is, you know, his four criminal prosecutions. If he is elected president, they go away. One way or another, they go away. If he is not elected president, he will be found guilty. Thirty-four will seem like a small number in terms of the number of things he’s found guilty of. And at some level, even though I believe that whatever is afflicting the former president has taken a serious toll on his mental acuity, he understands that. And he gets the stakes of this election. And while we all see the stakes as existential, so does he. And I think it’s important to remember that.

Amy Cobb
Wow. So I should really just enjoy the summer? ((laughing))

Stuart Shapiro
Go on vacation and try not to read the news too much or follow social media. ((laughing))

Amy Cobb
I try my best. ((laughing)) Actually I really do, because it’s just noise at this point. Well, thanks for, you know, keeping it real Stuart.

Stuart Shapiro
((laughing)) Hey, that’s my job here. A big thank you. Well, thank you to Amy, for coming back. Always happy to have you on and to see you. And also a big thank you to our new producer, Tamara Swedberg. And to KarYn OlsEn. We are done for the season Now. We will be back in the fall with our 11th season of EJB Talks. And I’m sure there will be at least a couple of episodes on the election in that because let’s face it. We will–despite Amy’s efforts to avoid social media and the news–we’re all going to be sucked into the vortex come September, October. All right. Have a great summer and stay safe!