With news network helicopters hovering overhead, Trump’s motorcade made its way south through Manhattan on Monday, toward his long-awaited arrest and arraignment. Trump was, however begrudgingly, arriving in court to surrender himself to the judicial process and to hear details of the 34 felony counts that Manhattan District Attorney Alvin Bragg was charging him with. Ever the self-promoter, Trump has seized the moment and refashioned himself as the outlaw ex-and-maybe-future president, the gangster folk hero, the desperado taking on the maleficent forces of the overweening state, the revolutionary so fearsome that the state has to resort to a show trial to shut him up.
It’s a given that the upcoming trial will be a theatrical spectacle, an exercise in the absurd, not unlike the trial of the Chicago Eight more than a half-century ago. Trump might not share any of the politics of the Chicago defendants, but, consummate showman that he is, he’s almost certainly aware of the antics of its central protagonists. He is today seeking to make the courthouse and the media interest in the trial his stage, as did Abbie Hoffman and Jerry Rubin in Chicago in 1969. Even Trump’s demands—after his arraignment—that Congress defund the Justice Department and the FBI, seem like the sort of flamboyant, designed-to-trigger-a-reaction statement that Yippie founder Hoffman might have made.
Trump’s efforts to undermine the legitimacy of the court proceedings have not fallen on deaf ears. The core argument that the GOP, at Trump’s relentless urging, is coalescing around—that even Mitt Romney, the party’s most consistent Trump critic, seems to have bought into—is that DA Bragg was elected by Democratic voters (true), that he has a “radical” agenda (irrelevant), and that this is a selective prosecution and an illegitimate, even unprecedented, “weaponization” of the justice system (untrue).
DAs are, because of the US system of electing top law enforcement and judicial personnel, inherently political. There’s nothing new or surprising about that. DAs always have had a degree of discretion as to which charges to pursue and which cases to devote resources to. When rules are broken, DAs have always had the ability to pursue the toughest charges they can. It’s just that, on the whole, they tend to do this against people with far less visibility and resources than Trump has.
More than a quarter-century ago, with California caught up in a relentless tough-on-crime moment and thousands of low-end offenders being sentenced to life in prison on three-strikes-and-you’re-out charges, I began work on my first book, Hard Time Blues. It was about how then-Governor Pete Wilson had used the tough-on-crime issue to win reelection, and it was also about the life of Billy Ochoa, one of the first people to be sentenced under the new law.
Ochoa had cycled in and out of jail and prison for years, mostly for two-bit offenses relating to the need to fund his heroin addiction. In the mid-1990s, he was arrested for welfare fraud (using fake names to apply for emergency welfare payments in several jurisdictions around the greater Los Angeles region). A politically ambitious, grandstanding DA, who knew that the public wanted a rush of three-strikes convictions, charged Ochoa not with one count of welfare fraud but with more than a dozen. He was found guilty on all counts, and the DA demanded that each conviction receive a three-strikes sentence of a minimum of 25 years in prison. Cumulatively, for just over $2,000 of fraud, Ochoa was sentenced to over 300 years in prison. He died behind bars a few years after I finished writing my book.
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Why didn’t Republicans back then denounce the “selective prosecution,” or the politicization of the legal system, that led to thousands of inmates like Ochoa receiving grossly disproportionate sentences? Why didn’t senior political figures rush to oppose DAs who were pushing the most serious charges possible against powerless, impoverished, defendants such as Ochoa—bumping up misdemeanor offenses to felony charges simply because Three Strikes gave them the tool to do so? Why didn’t senators and representatives righteously denounce the intrusion of politics, the siren call of ill-thought-out “tough” measures, into the supposedly impartial judicial system? Why didn’t they balk at the threat of Three Strikes prosecutions used to convince low-level offenders to forgo their right to a trial and, instead, accept plea bargain deals and slightly less lengthy sentences?
More generally, those same Republicans who are stampeding to denounce Bragg for daring to prosecute Trump for an array of business- and campaign-finance-related offenses have had no problem cherry-picking judges to hear cases against the Affordable Care Act or abortion access. Witness the recent case in which a conservative judge in Texas ruled that insurance companies didn’t have to provide free access to preventive care services. Or the ongoing case in which a Trump-appointed extremist judge was sought out in an effort to overturn the FDA’s long-standing approval of one of the two abortion pills currently on the market. Nor have they had a problem with attorneys general, such as Ken Paxton in Texas, using the full might of the state to intimidate doctors providing vital health care services, threatening them with prosecution and fearsome punishments simply for doing their jobs as health care providers. Or with Supreme Court justices—three of whom were selected by Trump specifically for their deeply conservative worldviews and, it seems, their willingness to overturn long-standing judicial precedents—repeatedly striking down labor protections and gun control laws passed by state legislators and city councils.
In other words, bah humbug! Bragg and his team of prosecutors have a perfect right to bring these charges. That’s how the system works, as the GOP knows all too well. And Trump has a perfect right to defend himself, at trial, from these charges. When I think of the victims of judicial overreach, I think not of the Donald Trumps of this world—men who have long gamed the system and who have an army of well-paid attorneys on hand to fight their cases—but of the Billy Ochoas, the huge numbers of men and women spending decades in prison for crimes that caused only a microscopic fraction of the amount of damage done by Trump’s potentially illegal and unsavory activities over the years.
