The lawfare-induced Biden ad – just in time for debate
President Joe Biden's reelection campaign has released a new ad that synopsizes the Democratic effort to use criminal charges and lawsuits against former President Donald Trump. "In the courtroom, we see Donald Trump for who he is," the ad begins. "He's been convicted of 34 felonies. Found liable for sexual assault. And he committed financial fraud." Trump, the ad continues, is a "convicted criminal," while Biden is "a president who's fighting for your family."
Maybe there were times when you wondered what accounted for the swarm of legal attacks on Trump, coming from elected Democratic prosecutors and appointees of the Biden Justice Department, in late 2022 and 2023. Part of it was delayed gratification; many Democrats had long been itching to go after Trump legally, but as long as he was president of the United States, until Jan. 20, 2021, that was hard to do.
But a larger reason was the coming 2024 presidential campaign. By the middle of 2022, it was clear that Trump intended to run for his old office again. For a moment, the impressive reelection victory of Florida Gov. Ron DeSantis in November 2022 appeared to set up a primary contest between the two men, but DeSantis faltered. Trump always had the support of a majority of Republicans, and as the months went by, his strength in the GOP nominating contest grew and grew.
That's where the Democratic strategy came in. In September 2022, the elected Democratic attorney general of New York, Letitia James, filed a massive lawsuit against Trump, seeking to destroy his business and extract hundreds of millions of dollars from him by accusing Trump of committing financial fraud by overvaluing his real estate properties.
In November 2022, the writer E. Jean Carroll, who in 2019 accused Trump of defamation, filed a second lawsuit against Trump, this one accusing him of rape. The accusation was decades past the statute of limitations, but Carroll, using a special one-time-only New York me-too law, got in just under the line to allege that Trump attacked her sometime in the 1990s. She had never reported or publicly mentioned the event until she began selling a book in 2019.
In March 2023, the elected Democratic district attorney of Manhattan, Alvin Bragg, employed a rarely used legal maneuver to turn an out-of-date misdemeanor allegation into 34 felony counts against the former president. In June 2023, Jack Smith, the special counsel appointed by the Biden Justice Department to investigate Trump, indicted Trump on 40 felony counts in the classified records case. In August 2023, Smith indicted Trump again, this time on four felony counts related to the 2020 election and Jan. 6. And then, in August 2023, Fani Willis, the elected Democratic district attorney of Fulton County, Georgia, indicted Trump on 13 felony counts related to the 2020 election.
It was a multiple-redundant attack. That is, if one prong of the effort failed, or became mired in legal procedure, there were others ready to go forward. The first success was the E. Jean Carroll suit, in which a jury, guided by a judge whose decisions made Trump's defense difficult, found Trump liable for the decades-old allegation of "sexual abuse" against Carroll. Trump was ordered to pay Carroll more than $83 million in damages. That allowed the Biden commercial to say Trump was found liable for "sexual assault." (The actual verdict was "sexual abuse," but perhaps the Biden admakers thought "sexual assault" sounded better.)
The next hit was the Letitia James lawsuit. It was, in the eyes of some experts, a weak case, certainly not worthy of the penalties sought, but under New York law, Trump did not have the right to a jury trial. Another judge who made Trump's defense difficult decided Trump was liable and ordered him to pay a jaw-dropping $354 million in damages, even though no victim of Trump's alleged corrupt scheme was ever identified. That allowed the Biden commercial to say Trump "committed financial fraud."
The lawsuits paved the way for the Biden campaign to make two critical claims in the ad. But after that, things began to slow down. The special counsel's documents case became mired in questions of evidence, procedure, and other issues. There is very little chance it will come to trial, and zero chance it will be concluded, before the election. Smith's 2020/J6 case has slowed down because some of the special counsel's charges are so aggressive that the Supreme Court decided to rule on Trump's defenses. The court's opinions are expected soon, but there appears to be no way the case could go to trial before the election. And in Georgia, Fani Willis case is disintegrating over the prosecutor's misconduct. It might never come to trial.
But the Bragg case managed to avoid procedural pitfalls and go to trial starting in April. Now, with Trump's conviction on 34 counts, it has paid off beyond measure for the Biden campaign. Trump, the ad says, is a "convicted criminal" who was "convicted of 34 felonies" – the claim that makes up the centerpiece of the ad. (The ad shows Trump's infamous mug shot, which actually came from the Georgia case, but the ad isn't too fastidious about the details.)
So the new ad is made possible by the Democratic attack on Trump, successes that all happened to originate with Democrats in New York – the Carroll case, the James lawsuit and the Bragg prosecution. Together, the cases gave Biden admakers the material they needed to frame the campaign as a choice between a convicted criminal and a president who is working hard for you. It could not be better timed for a president struggling in the polls.
The race is beginning to peak, with the run-up to the first debate and the Republican Convention approaching – and now an elaborate campaign of lawfare is paying off at just the right time.
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