When voters are consumed with anti-establishment rage, a criminal record is no barrier to high office.
Liberals don’t have much to cheer about right now, so it’s hard to begrudge the hilarity Friday when a New York court declared Donald Trump a convicted felon for the hush-hush payments he made to adult film actress Stormy Daniels. There’s certainly a certain satisfaction to be had in Trump surviving the sentencing recorded by The New York Times: “President-elect Donald J. Trump escaped prison, but became a criminal.” Trump’s conservative base was gleefully outraged. Fox News anchor John Roberts splattered“Now he’s being branded, ah, Donald Trump with a scarlet capital F on his forehead, that he’s a convicted felon.” Roberts went on to complain that the sentence was “made up … to smear Donald Trump.”
On the contrary, tennis legend Martina Navratilova chuckled“Convicted felon Donald J. Trump really has a certain ring to it, right?” Other liberals enthusiastically listed many countries that Donald Trump would be barred from entering as a criminal (a joke that loses its appeal when you realize that as US president he would easily be able to get a waiver from the normal rules).
Beyond the immediate partisan reaction, Trump’s felony conviction seems like a small victory for liberalism that hides a larger, catastrophic defeat. Even if we welcome the small token justice of a felony conviction, there’s nothing to cheer about the fact that this conviction came for the least serious criminal cases Trump has faced, and that both the judge and the prosecutor agreed he shouldn’t be punished. How The New York Times reports:
Trump once faced up to four years in prison for falsifying business records to cover up a sex scandal, but on Friday he received only a so-called conditional release. The sentence, a rare and lenient alternative to prison or probation, reflects the practical and constitutional impossibility of imprisoning the president-elect.
In other words, the conviction does not mean an end to Trump’s lifetime impunity, but rather is another manifestation of that impunity. As Trump is about to enter the White House, the other criminal cases against him are effectively over. On Friday, special counsel Jack Smith, who oversaw the investigation into Trump’s efforts to overturn the 2020 election and his handling of classified documents, resigned. The Lincoln Project, an anti-Trump conservative group, seized on the contradictions of the moment, noting“Donald Trump ran for office to avoid punishment for his crimes, and it worked. The fact remains that he has been convicted 34 times.”
In truth, Trump’s conviction for a toothless crime that occurred on the eve of his return to the White House is not cause for rejoicing: rather, it should prompt anti-Trump forces to soberly reflect on the failure of prosecutorial liberalism. Using prosecutors and the courts to fight Trump has been a focus of liberal energy for the past decade, but it’s a failed strategy that has only strengthened Trump in the end.
Back in 2017, I wrote a column for The new republic where I questioned the belief of many liberals that prosecutors like Rod Rosenstein and Robert Mueller are on the verge of taking advantage of Trump and neutralizing him as a political force. I argued that
(Relying) on Rosenstein and Mueller as bulwarks against Trump’s worst excesses is a stark example of a trap that liberals have fallen into time and time again when dealing with abuses of presidential power — a tradition of “prosecutorial liberalism” that leans more toward the legal , than to a political measure of punishment for the president’s wrongdoings. This approach is dangerous because it allows legislators to transfer political problems to apolitical law enforcement officers.
Current issue
In 2020, after Mueller’s investigation failed, I reflected Art Nation on the cultural and historical roots of prosecutorial liberalism.
The cult of Mueller was founded on the dubious idea that a Republican and member of the Washington elite would spend his life conducting an unrelenting and incendiary investigation of the GOP president. This belief, in turn, was based on an idealization of federal law enforcement agencies, which were seen as incorruptible and strictly loyal to the law. The liberals who joined Mueller’s cult, as much as any conservative, trusted the cultural myths created by J. by Edgar Hoover in the early 20th century to legitimize the FBI. These myths paint federal lawmakers as dignified figures: elected advocates of justice who can be trusted more than politicians.
Although prosecutorial liberalism has repeatedly failed, its grip on the center-left elite has only deepened. A big part of Kamala Harris’s political persona was a boast that she was a tough D.A. in California so she would be able to stand up to the sworn criminal Trump.
Not all voters really liked Kamala the cop. Many on the left, energized by the police reform movement, saw her career as a prosecutor as a reason not to trust her. A report on working-class people of color in the Bronx who voted for both Donald Trump and Alexandria Acasio-Cortez in 2024 documented that there was public distrust of Harris’s prosecution report.
The problems with prosecutorial liberalism are twofold. First, it is a strategy that tries to use the legal system to do political work. Of course, when figures like Trump commit crimes, they should be brought under the law. But the law by itself is not able to settle the voters’ question about the status of a corrupt politician. There is long story voters who reward politicians who break the law or have been embroiled in scandal, favorite scoundrels like former Washington Mayor Marion Barry and former Louisiana Governor Edwin Edwards.
The names Barry and Edwards highlight the second major problem with prosecutorial liberalism: It is a strategy that is counterproductive in an age of anti-systemic anger. Barry and Edwards were popular villains precisely because their run-ins with the law strengthened their overall populist stance. The fact that Barry was targeted as part of an FBI crack cocaine scheme only proved that he was a threat to the system, giving him credibility with working-class voters.
We live in an age of anti-establishment rage that has now spread from poor regions like Washington, D.C., and Louisiana to the entire United States. Trump’s popularity is due to the fact that he can express, however deceptively, an anti-establishment anger. Countering Trump with cardboard heroes of the FBI like Robert Mueller or the liberal punitiveness of Kamala the cop only serves to legitimize Trump’s own claims that the authorities are against him.
popular
“Swipe to the bottom left to see more authors”Swipe →
Trump’s corruption and lawlessness remain a serious problem. But in his second term, liberals must abandon the fantasy that there is a popular and legitimate legal system that can hold Trump accountable. Instead, the focus should be on the political argument: Democrats need to show that Trump’s corruption is self-serving — that he’s not a Robin Hood fighting for ordinary people, but just another plutocrat for himself and his rich friends.
It’s entirely possible, indeed likely, that Democrats will regain control of the House in 2026. If they do, they’ll have a chance to engage in political battles they’ve so far avoided: using congressional investigative powers to truly investigate Trump’s abuse of power beyond the Russia-centric issues that are the central concern of the national security state. The next direction of attack is the entire sphere of presidential power and elite impunity. The problems of control over the imperial presidency that dominated politics during the Richard Nixon era need to be urgently re-examined. Politically impeaching Trump’s corruption won’t be easy, but it at least offers hope for a systematic solution rather than simply a return to the prosecutorial liberalism that has failed time and time again.
More from Jeet Heer 
The United States will probably not annex Canada. But Trump’s imperial dreams are already destabilizing the world.
Unwavering support for the restoration of the old regime means bonuses for Liz Cheney, Hillary Clinton and George Soros.
Gerontocracy, pro-establishment politics, and deception by Democratic Party insiders all helped elect Donald Trump.
