Of Course Biden Should Attack Trump for Being a Convicted Felon

People are overthinking this one.

Dear readers,

If we’re going to debate whether — or how —Joe Biden should use to his advantage his opponent’s conviction on 34 felony counts, I think it’s worth starting from a greater level of abstraction: In general, in a political campaign, how should one react to one’s opponent being convicted of crimes? The answer to this question is obvious. “My opponent is a convicted criminal, a literal felon” is a great talking point and a clean, factual hit; you should push that message as hard as you can.

So I’ve been surprised by the hand-wringing among Democrats about how Biden should handle the issue of Trump’s conviction in a New York court. It’s possible that these specific circumstances call for a different approach, but I start from the obvious point: a criminal conviction is both fair game and a powerful political argument. I would need to be convinced of why this situation is different, and I don’t think the arguments are convincing.

Trump supporters and anti-Trump protesters gathered in front of Trump Tower in Manhattan as the former president held a news conference on the hush money verdict in Manhattan on May 31. Anti-Trump protesters chanted slogans such as 'Trump is guilty' and Trump supporters chanted slogans such as 'Not guilty.’ (Photo by Selcuk Acar/Anadolu via Getty Images)

I’ll lay out the arguments I’ve seen for why Biden should pull his punches, and why I don’t buy them.

1. A focus on Trump’s convictions will backfire because it will create a sympathy vote for Trump among voters who think the convictions are unfair.
   Who are these voters who were supposedly waiting for Trump to actually be convicted before they decided they would vote for him? As I noted in a conversation with The New York Times last week, after the verdict, the Republican polling firm Echelon Insights contacted voters they’d already previously surveyed about the election, and 6% said the conviction would change their votes. But among those who claimed the conviction was causing them to switch to vote for Trump, 100% had already told Echelon, before the trial, that they were voting for Trump.¹ In the Republican primary, it may have been true that a focus on Trump’s legal travails was consolidating voters in Trump’s favor. But in the general election, the people who are motivated by Trump’s “persecution” are his core base voters. The thing about his base is it’s already voting for him no matter what — that’s what makes the base the base — and Biden does not need to fear they will vote for Trump even harder if he talks about the conviction too much. As for persuadable voters — well, they tend to be younger, less politically engaged, and less ideologically extreme than base voters. They do not have a strong emotional investment in the idea that Trump is being persecuted — if they did, they wouldn’t be disengaged and persuadable. And there is some evidence that information about Trump’s conviction is somewhat persuasive to them not to vote for him. This cuts in favor of talking about the conviction, not against it.

2. Talking about the conviction is improper because it promotes the idea that this was a politicized prosecution.
   Biden shouldn’t comment on ongoing DOJ prosecutions, and I think it’s probably for the best that he not talk about ongoing state prosecutions, lest he appear to be creating pressure around them. But this is a completed trial in a state court, resulting from a prosecution he had no role in bringing and over which he had no control. I don’t see what institutional concern is served by him not talking about it.

3. Biden shouldn’t talk about the conviction because the prosecution was kind of BS, brought using a novel legal theory that would have been unlikely to be used against a less notable defendant.
   Sorry for being formalistic here, but I think whether the DA’s legal theory was valid is a question for New York’s appellate courts, and also a fair question for voters to consider if they want, but it is not Joe Biden’s problem or responsibility. Trump has been duly tried and convicted, in a process over which Biden did not have control or influence.² A campaign is not a court of law, and voters can judge for themselves the actions that led to Trump’s conviction: First, he cheated on his wife (who gave birth to his son Barron just four months prior) with a porn star. He sent a goon to threaten that porn star against talking about their sexual encounter. He paid her hush money so voters wouldn’t learn about the affair before the 2016 election. And he created false business records to conceal the hush payment’s purpose — an act that was clearly a New York misdemeanor, even though appellate courts will scrutinize the aggressive theory that turned it into a felony. While it’s probably true Trump wouldn’t have been charged if he weren’t Trump, he also wouldn’t have been charged if he hadn’t done that specific set of gross things. Voters are even free to decide that Trump is generally a crook and therefore it’s fair for him to be convicted of a crime, like OJ Simpson and his theft of memorabilia — it’s not the way courts work (and for good reason), but it’s a perfectly good way for ordinary citizens to decide who we should feel sorry for. And, it’s perfectly fair for his opponent in the general election to point out that he keeps getting in legal trouble because he commits crimes — the technicalities can be left to the courts.

4. Biden shouldn’t talk about the conviction because nobody cares about this stuff — this election is about things directly affecting people’s everyday lives, like immigration, inflation and abortion.
   People obviously do care about (gestures broadly) this stuff — leaders all over the world are unpopular due to inflation, Biden’s approval rating is terrible, and yet this election is close anyway due to Trump’s unpopularity. A key root of that unpopularity is his reputation for immoral and criminous behavior. A better question than do people care about this stuff is can they be made to care any more — do Trump’s conviction and messaging about the conviction actually move votes? I have an open mind about how much mileage can be gotten out of messaging about the conviction — and certainly, I don’t think the Biden campaign should talk about Trump’s conviction instead of attacking his plans to restrict abortion rights, cut taxes on rich people and corporations, and raise the cost of living by imposing tariffs that make all the goods we buy more expensive. But a recent New York Times survey (which, like the Echelon Insights survey, contacted voters previously surveyed by the Times) found that the margin of support among the recontacted voters had shifted to Biden by 2 percentage points after the guilty verdict, with the shift especially concentrated among “young, non-white and disengaged Democratic-leaning voters” — that is, exactly the sort of demographics we often talk about as uninterested in Trump’s trials and falling away from Biden over the cost of living.

More broadly, I think some Democrats have over-learned a lesson from Hillary Clinton overdoing it on the character attacks in 2016. Her campaign focused too much on how Trump was different from other Republicans and not enough on the usual reasons voters might reject Republicans; partly as a result, voters perceived Trump as more moderate than Clinton by Election Day, and he won.

But there are now signs of a bit of amnesia about Trump’s personal defects among less-engaged voters. The youngest voters in this upcoming election were 10 years old when the “Access Hollywood” tape came out, and 5 years old when Trump rocketed himself to relevance in conservative politics with his promotion of the theory that America’s first black president was secretly foreign-born. As the Times poll suggests, some reminders about exactly what’s so bad about Donald Trump The Person really could help convince some of those voters that Trump is unacceptable and bring them (back) into the Biden fold. Biden shouldn’t pass up any opportunity to send those reminders.

Very seriously,

Josh

1. Nearly all of those who told Echelon the conviction had caused them to switch to supporting Biden had already supported Biden before the trial, too.

2. As happened with former Virginia Gov. Bob McDonnell before him, an appeals court may eventually find Trump’s conduct wasn’t actually against the law. Does the fact that McDonnell’s actions (receipt of gifts from the CEO of a dietary supplement company and promotion of that company’s business interests to state officials) were ultimately found not to be a crime mean it would have been wrong for political opponents to highlight McDonnell’s actions and the fact that they got him tried and convicted? Does it mean that it was unfair for McDonnell’s political career to end?