Former President Donald Trump remains in legal peril to a degree without precedent for a major-party nominee, but the cases against him are falling apart politically.
What happens to Trump in court is the most important thing. But barring a conviction and sentence before Election Day, the 2024 presidential race will be tried in the court of public opinion.
That’s what makes former special counsel Robert Hur’s repeated assertions during sworn congressional testimony that he did not “exonerate” President Joe Biden in his classified documents investigation so significant.
The classified documents case against Trump is the most legally straightforward of the indictments he faces and is viewed by most relevant experts to be the strongest.
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But there already existed a public perception of a double standard, in which Biden and Hillary Clinton were let off the hook for their mishandling of classified documents while Trump is being prosecuted.
A recent I&I-TIPP poll found that 62% believed the Justice Department was more lenient toward Biden than Trump on classified Biden “received special treatment because he is the U.S. president.”
There are important legal differences between the behavior alleged of Trump and Biden, which Hur acknowledged in his congressional testimony. For one, Trump stands accused of being less cooperative. There are also questions about the nature and volume of documents Trump retained after leaving office.
The technical distinctions are difficult to convey during a rough-and-tumble presidential campaign, however. Moreover, Hur’s steadfast refusal to use the word “exonerate” is likely to enhance the public view that the two main 2024 presidential candidates are not being treated the same.
In the cases of both Biden and Clinton, the government’s inability to prove intent loomed large in how those investigations were concluded. Hur made headlines with his determination that Biden’s faulty memory would hinder a successful prosecution.
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur said in his report.
Any trial would have taken place after Biden left office, per Justice Department guidelines about indicting a sitting president. That would make Biden at least 82 if beaten in November and 86 if he served out a second term.
“You did not reach an idea that he had committed no wrong. You reached a conclusion that you would not prevail at trial and therefore did not take it forward?” Rep. Darrell Issa (R-CA) asked Hur on Tuesday.
“Correct, congressman,” the former special counsel replied.
This comes amid other cases against Trump where the legal reasoning is more complicated, including the federal investigation of his conduct on Jan. 6 and after the 2020 election.
The state cases, both brought by Democratic district attorneys, have been widely seen as political from the beginning. A judge tossed out some of the Georgia charges against Trump on Wednesday while leaving the vast majority of them in place, and questions remain about whether Fulton County District Attorney Fani Willis will be disqualified.
Manhattan District Attorney Alvin Bragg’s hush money case against Trump has long been viewed as the weakest case against the former president.
None of this means Trump could not be convicted of any, or even all, of the charges against him. This is precisely what makes him such a risky Republican nominee in what appears to be a winnable general election.
The politics of the classified documents case especially must be considered separately from the legal ramifications. Trump also faces unfavorable jury pools in Washington, D.C., where he could not even crack 1,000 votes in this month’s Republican primary, and New York, where he has faced adverse civil judgments despite critiques of the cases brought against him.
There is polling that suggests a single conviction could erase Trump’s lead in the battleground states and, with it, an Electoral College majority to return him to the White House.
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At the same time, the indictments helped Trump in the Republican primaries by reinforcing voters’ perceptions of a “two-tiered” or “weaponized” justice system.
That will be a taller order with the broader electorate, though recent events suggest perhaps not an impossible one.
