On November 8-9, 1923, Hitler launched an attempted coup— the Munich Putsch or Beer Hall Putsch— to take over right-wing Bavaria (politically, the Florida of Germany at the time) and use it as a base to topple the Weimar Republic. After a rally at the Bürgerbräukeller beer hall, Hitler and his well-armed Nazi followers, marched to the Feldherrnhalle, where police resisted, sparking a brief but intense armed clash killing 16 Nazi Party members and four police officers were killed. One top Nazi, Ernst Röhm, was wounded. The next day, Hitler and other prominent Nazis involved in the Putsch were arrested and charged with treason.
So why didn’t that end Hitler’s career right then and there? While the immediate outcome was a failure, the events surrounding the Putsch increased Hitler's notoriety, provided a platform for his extremist views, and helped solidify his position as a prominent figure within the far-right movement in Germany. What started off as a setback for Hitler, actually helped propel him to eventually take over the country. The failed coup and the subsequent trial received significant media attention, which allowed Hitler to gain massive publicity and spread his ideology, even while also portraying him as a radical and lawless figure. During his trial, Hitler used the courtroom as a platform to deliver impassioned speeches, present his nationalist and anti-Semitic views, and gain public attention. His charismatic performance during the trial helped raise his profile and attract supporters.
Just like Trump’s indictment is doing today, Hitler's trial generated sympathy among nationalist and far-right sympathizers who saw him as a champion of their cause. His prison sentence of five years was considered relatively lenient, and he served only nine months before being released. While in prison, Hitler had time to reflect on the failed coup and rethink his political strategy— and write Mein Kampf, basically the Nazi manifesto (and Trump’s favorite book). He focused on building a broader base of support, expanding the Nazi Party's organizational structure, emphasizing a more legal and parliamentary path to power.
Unfortunately for the world, the Munich Putsch and Hitler's subsequent arrest, trial and brief imprisonment amounted to a pivotal moment in his political career. The world would be a much different place had he been shot and killed or rotted in prison for 20 years instead of 9 months. The incident was inconvenient in the short term but provided Hitler with a platform for spreading his ideology, gaining sympathy, and re-strategizing his approach to seize power. I’m not advocating that anyone execute Trump before a fair trial but I would like to see him die behind bars, the sooner the better for America and humanity.
Author Jeff Sharlet made clear on Twitter over the weekend, that Trump’s subtle— and not so subtle— anti-semitic, racist and anti-LGBTQ signals are more prevalent in his rallies than ever. “Trump opening post-indictment speech today: ‘Together we stand up to the globalists, we stand up to the Marxists.’ Historically, this is hate speech for ‘Jews.’ A subtle move, feeding outright Jew-haters & broadening their conspiracy theories to all his enemies. ‘We stand up to the open border fanatics and... the lawless prosecutors... in blue states,’ Trump continues. Much as Nixon used ‘heroin’ & ‘marijuana’ to mean Blacks and hippies, Trump means brown & Black people. But he also knows he's making inroads with them, so Trump uses this kind of code for Jews, Latinx, and Black people to distinguish between ‘good’ ones & ‘bad’ ones, holding out to the ‘good’ ones what Anthea Butler calls ‘the promise of whiteness,’ assimilation into the fascist borg of privilege. Trump says unnamed ‘sinister’ forces stronger than all external enemies combined trying to destroy America. ‘From within is worse than without’—said every fascist leader, ever…. ‘We will take back this country from these fascists & thugs,’ says Trump. Several rhetorical moves here: ‘thugs’ does double duty: In Trumpish, it means both Black people & ‘bad’ labor, the kind that doesn't vote Trump. ‘Fascists’ is coming to mean for Trump queer folks . ‘Afghanistan... one of largest exporters of arms,’ says Trump. Not true. (1. US. 2. Russia 3. France. Etc.) So what? One of my arguments in The Undertow is that you can't factcheck a myth. But you can interpret it. Trump's invoking the fascist ‘stabbed in the back’ myth here. The ‘stabbed-in-the-back’ myth— dolchstoßlegende, in German-- began after WWI when German rightists decided that Jewish Germans, many of them socialists, undermined Germany, causing it to lose the war. Wiki's not bad her… ‘Jack Smith. Does anyone know what his name used to be? Sounds so innocent.’ Trump's played this routine before, but it must be called out every time. It's undiluted antisemitism, & worse: The name sounds white. But how can a real white man be ‘against’ Trump? Jack Smith, claims Trump, ‘caused’ the IRS to ‘go after evangelicals, Christians, great Americans of faith.’ Get the antisemitism? Jack Smith, who must have changed his name must be a Jewish enemy of Christianity. (He's neither, far as I can tell.) Jack Smith, continues Trump, made Christians ‘pay dearly’ to the IRS. Jack Smith, he's saying, took his pound of flesh. This is classical antisemitism, in a speech that began with attacks on ‘globalists’ and ‘Marxists.’ Why might Trump be doubling down on antisemitism (besides lifelong soft bigotry)? Because, it pains me as a Jew to say, he knows there are just enough rightwing Jews, including Stephen Miller, to provide him plausible deniability.
As Alex Thompson noted at Axios yesterday, never in the history of American politics has one man survived and even thrived off more terrible news than Señor Trumpanzee. He’s been coming out stronger— at least among members of the MAGA-Republican base— because of impeachments, investigations and indictments. As he learned from Hitler and Roy Cohn, he never hides or acts embarrassed, even in the face of damning information, he wraps himself in the cloak of martyrdom, telling his supporters that any allegations against him are part of a larger conspiracy against his cause to fight the establishment and he muddies the waters by pointing to any mistakes— real, exaggerated, or false— by his opponents. He also uses these events as opportunities to further sheer the sheep and raise money for his campaign and for himself. “In the end, they’re not coming after me, they’re coming after you— and I'm just standing in their way,” Trump said Saturday at a rally in Columbus, Georgia, where he also declared, apocalyptically, that “This is the final battle.”
The YouGov poll for CBS News that was released yesterday makes it clear just how bought in Republican primary voters are to his strategy. Although 80% of normal people saw his theft of nuclear secrets as endangering national security, just 38% of likely GOP primary voters do. And even he’s convicted— the way Hitler was— 80% of Republicans primary voters think he should be able to serve as president again. And if a Republican— Trump or otherwise— does manage to win the White House, 35% of MAGAts feel they should investigate and punish Democrats. And it’s pretty clear who they want to be their nominee:
Fortunately, when polling doesn’t focus on MAGAts and likely GOP primary voters, a more rational picture starts emerging. Ipsos’ new poll for ABC News. The proportion of voters who see the charges against Trump as serious has risen dramatically— from 84% to 91% among Democrats, from 54% to 63% among independents and even among Republicans from 21% to 38%. Even more important, 48% of Americans think Trump should be charged (as opposed to 35% who think he shouldn’t be).
Will Trump get away with it? Paul Rosenzweig, a hackish right wing attorney and Federalist Society favorite, thinks so. In an Atlantic essay yesterday, even while admitting Jack Smith’s case is serious and strong and the evidence against Trump solid, he wrote that Trump will walk away unscathed. In part, he thinks some of the evidence— documents stolen by Trump— is “chilling” and too sensitive to be made public. Andthen there’s the MAGA judge that got assigned to the case. “To begin with,” wrote Rosenzweig, “Smith was exceedingly unlucky in his drawing of a judge. The case was assigned to Judge Aileen Cannon, the same judge whose interference in the original search of Mar-a-Lago was roundly criticized and rejected by the Eleventh Circuit (the appellate court that oversees her district). Her past rulings suggest that her instincts will favor Trump. Federal district judges have substantial discretion in the conduct of trials, and so their underlying proclivities can matter… [She has] the power to dismiss a prosecutor’s case at the end of the prosecutor’s presentation on a finding that the government has not presented sufficient evidence from which a jury could find guilt beyond a reasonable doubt. This broad discretion is rarely used, because it allows a judge to substitute their own judgment for that of the jury. But it does exist and, more important for our purposes, it is completely unreviewable. For reasons of double jeopardy, if a judge dismisses a case at the close of the prosecutor’s presentation, that’s the end of it. One does not have to be completely Machiavellian to see in this power the prospect of judicial interference and disruption.”
There are ample other ways, well within the bounds of discretion, in which a judge might impact the trial of a case. Consider just two more.
Within certain boundaries, trial judges have almost unreviewable discretion to determine what evidence will, and will not, be presented to a jury. Often, judges use that authority to trim frivolous defense arguments. Sovereign-tax protesters, for example, are not allowed to offer evidence that they think shows that the U.S. government is not constitutionally authorized to impose an income tax. Nonsense arguments like that are simply ruled out of bounds.
Many of Trump’s defenses to the espionage charges border on frivolous. The “I can declassify a document just by thinking about it” and the “I’m entitled to keep whatever documents I want from my presidency” defenses genuinely have no legal basis. Many judges would, quite properly, exclude testimony about those issues as an attempt to confuse the jury with irrelevant matters. But that decision is not inevitable, and a small minority of judges might reach the opposite conclusion, inevitably complicating Smith’s presentation of the case and reducing the likelihood of a conviction.
Far more prosaically, trial judges have near absolute and plenary authority over the timing of trials in their courtroom. They set the deadlines for when discovery must be completed, for when motions must be filed, for how quickly (or slowly) they decide those motions, and, ultimately, for when the trial will be scheduled.
As the special counsel made clear in his brief public remarks last Friday, he is seeking a relatively speedy trial. Beyond the normal concerns regarding delay— that evidence will grow stale or that witnesses will become available— he wants this trial to be resolved well before the 2024 presidential election. Many think that the public interest also counsels a quick resolution; as voters, we also want to know the result before the election.
Trump, by contrast, wants delay. Delay always benefits a defendant, but here, if the trial were postponed until after the 2024 election, there is every reason to think that a Republican victor (whether Trump or another candidate) would order the case dismissed. We cannot know now who will win, but in some ways the Trump candidacy is the ultimate plea for absolution from his criminal jeopardy. He is running for president in part to avoid jail.
…The choice of judge is not the only challenge Smith faces. The jury that will hear the case, or, more accurately, the jury pool from which the jurors will be drawn, will also be challenging… Trump received more than 334,000 votes, and that 46 percent of the electorate is likely to be 46 percent of the pool from which the jury will be drawn… At a minimum, some jurors will have inherent sympathy for the defendant— and the total number of them will likely be greater in Florida than in Washington, D.C.
…And then, finally, there is the wild-card prospect of jury nullification— the possibility that an adamant pro-Trump supporter will be seated on the jury with the committed mission of refusing to convict Trump, against all the evidence. This risk is not unique to the Trump prosecution. It can arise in any political case and can even appear in situations (like the prosecution of minor drug offenses) where the identity of an individual defendant is irrelevant to the nullifier. But it seems clear to me that the risk of nullification is especially salient with high-profile defendants like Trump, who are often the beneficiaries of cultlike loyalty.
…Are any of these obstacles insurmountable? No. But they are far more formidable than many observers think. The fundamental strength of Smith’s case mandated an indictment; bald-faced rejection of the legal system and manifest threats to national security could not be ignored. The strength also counsels optimism for a conviction. But the collateral factors of judge and jury make this a much harder case than the typical criminal prosecution.
As always, this circumstance demonstrates that the criminal process is, in the long run, ill-suited as a vehicle for resolving the fundamental underlying political problems facing America. Those problems seep into the process and affect its operation. Ultimately, the only solutions to America’s political challenges lie in the political arena.
