This op-ed was published by The National on May 8, 2024

The Manhattan trial of former president Donald Trump in the hush-money case is probably the most significant political drama currently playing out in the US, with both sides hoping that it will have a significant impact on the November presidential election in their favor.

It’s a high-risk, high-benefit scenario for Democrats and Republicans alike. The outcome of the election isn’t riding on the verdict of the trial, or even its overall impact on the national atmosphere, but, by the time the judgment is rendered, one side or the other is likely to sustain a serious political hit.

Standing trial for alleged criminally unlawful campaign contributions in the form of hush money payments to an adult film star who claims to have had a sexual relationship with him would sink any normal candidate instantly. But Mr. Trump is no normal candidate. Among his adoring base and within the broader Republican Party, in which they have enormous and outsize influence, he is practically beyond criticism.

But not quite. The future of Mr. Trump’s candidacy could well hinge upon the verdict, because a significant percentage of Republicans have reported to pollsters that they would not be prepared to vote for him or any other candidate who has been convicted of a serious felony. Many of these are no doubt among the 20-40 per cent of Republican primary voters who favored former South Carolina governor Nikki Haley, even after she formally dropped out of the race.

So, if Mr. Trump is convicted of cooking the books to conceal politically motivated payments to Stormy Daniels, as she is known in the adult film industry, that alone could sink Mr. Trump’s chances. There are fewer Republicans than there are Democrats in the US, although Democrats are inefficiently concentrated in high-population cities and coastal states, whereas Republicans are efficiently spread out across lower-density suburban and rural areas, thereby considerably strengthening the power of their votes in the US federal system.

In the 2016 US election, Mr. Trump was soundly defeated by Hillary Clinton, who had three million more of the popular vote, but he won a clear victory based on the demographic diffusion of his supporters in the electoral college. Mr. Biden scored a relatively narrow victory in the electoral college in 2020, despite a decisive seven-million margin in the popular vote. Nobody believes Mr. Trump has any chance of winning a popular majority in November, but many hope or fear that this quirk of the US system could nonetheless return him to the White House.

But obviously he cannot afford to lose many Republicans by being convicted. And despite his protestations that he’s being persecuted, being on trial for corruption due to an alleged affair, which Mr. Trump still denies but almost everyone else has accepted almost certainly took place, is not a good look among the relatively small group of swing voters – disproportionately women – who could determine the election result.

Worse, the evidence against him presented thus far is far stronger than many anticipated. The prosecution appears to have been able to demonstrate the depth of the plot to interfere with the election by ensuring voters never heard Ms Daniels’ story and to then unlawfully conceal the payment.

Many witnesses have testified that Mr Trump was clearly focused on the election rather than his broader reputation or the feelings of his wife and family. Indeed, several of those who were paid to sign non-disclosure agreements regarding such accusations were released from their obligations a mere two months after the 2016 election was concluded, which is only one of many established facts that seem to demonstrate this was indeed all about deceiving the voters.

But there are several potential silver linings for the former president. All he needs to do is to convince a single juror that the prosecution has not proven its case beyond a reasonable doubt to achieve a hung jury. If he’s not convicted, even with just one juror being a holdout, Mr. Trump will complain endlessly about a supposedly corrupt prosecution having been exposed as a tissue of lies and so on. Such an outcome could be sufficient vindication to give his candidacy a real boost and call the other, much stronger, cases against him into doubt in the public mind.

Mr. Trump has been enjoying bating Judge Juan Merchan by blatantly and provocatively disregarding a gag order that prevents him from publicly threatening or attacking those involved in the trial, including prosecutors, court staff, jurors and the judge himself – or their relatives. Mr. Trump has persisted in making statements that deliberately taunt the judge to enforce his order.

Judge Merchan has imposed $1,000 fines per violation, now amounting to 10 instances, but observed that “the $1,000 fines are not serving as a deterrent” and that he “will have to consider a jail sanction”. Yet, Mr. Trump might relish a brief stint behind bars, which he would use to reinforce his assumed martyrdom and raise money.

The judge is now trapped between handing Mr Trump such a publicity coup or allowing him to, as the judge phrased it, “interfere with the fair administration of justice” and “attack the rule of law”.

It may be politically irrelevant, but even though Mr Trump stands a good chance of being convicted, since the facts appear to greatly favour the prosecution, at least thus far, and even if he’s convicted, he may never serve a day behind bars for these charges. As a first offender, he would likely get probation unless his provocations are so severe the judge deems it necessary to sentence him to a few months of incarceration.

More importantly, Mr. Trump’s case on appeal may be as strong on the law as it is now weak on the facts. There are numerous grounds for challenging the novel and complex prosecution interpretation of the relevant statutes and serious issues about federal and state jurisdiction. So, the case may well eventually get thrown out on appeal even if Mr. Trump is convicted.

But that would come long after the election. The main questions are whether he gets to play the martyr in his game of chicken with the judge or becomes a convicted felon for the rest of the campaign. If he’s found guilty, Mr. Trump’s quest to regain the presidency may be doomed.