On Thursday night, in a dingy New York courtroom, America crossed a Rubicon. Donald Trump became the first US President ever to be convicted of a crime. Sentencing is due to go ahead in July, and there is now a very real possibility that Trump could make history again — by being the first serious Presidential candidate to run for office from a cell. America is now in a situation where there is a non-zero chance that the country will elect a man in prison. How has this happened?

Any jury who decides on his guilt or innocence is effectively being asked to decide if he should be allowed to become President

If Trump is the first President to be convicted of a crime, it is not, remotely, because he is the first President to be guilty of a crime. Even Richard Nixon, who faced impeachment and was forced to resign the Presidency, was pardoned by his successor Gerald Ford, rather than allowing a trial to go ahead. There is a very good reason for this precedent. Ford reasoned that legal proceedings would be unending — the situation was a “tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.” 

A former President, he correctly concluded, could not hope to get a fair trial amidst the white heat of political controversy — “After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.” And this was of course merely a former President.

Trump, meanwhile, is also a potential future president, currently running for office. Any jury who decides on his guilt or innocence is effectively being asked to decide if he should be allowed to become President. If a fair trial of Nixon was an impossibility, how much less could any American jury, however well chosen and advised, possibly reach a fair judgement about the most controversial politician in the country during an election? 

As Ford put it: “The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.” But American politics has long since ceased respecting reality. Crowds outside the courtroom scream “we got him!”. The Biden campaign called Trump a “dictator” and crowed that “nobody is above the law”. 

And what was the charge? It was the improbable claim that Trump’s misleading listing of a payoff of porn star Stormy Daniels as a “legal expense”, a misdemeanour under New York law, and past the statute of limitations, represented a breach of campaign finance laws, and represented an “illegal campaign contribution” as it could be argued the purpose of the funds was to safeguard his presidential run from scandal. 

Trump’s political enemies got to pick the prosecution, judge and jury

This extraordinary piece of legal reasoning would never have seen the light of day were it not for the concerted efforts of the Democratic Party machine to put Trump in a courtroom under any charge whatsoever, just so long as it was in time to keep him out of the White House. The judge is a supporter of the Democratic party, whose daughter’s charity has contracts with the Democratic Party. Trump’s lawyers requested he recuse himself — he refused. The trial was held in, and the jury drawn from, a district in which Trump polled at 5 per cent. A change of venue was requested — the judge refused. The prosecutor was, of course, an elected Democratic Party DA, and the originator of the arcane legal strategy which has somehow turned an 8 year old misdemeanour into a federal crime, for all that it was, with an added layer of confusion, being conducted in a state court. 

It would be far too grand to call the process Kafkaesque — this was just a good old kangaroo court in which Trump’s political enemies got to pick the prosecution, judge and jury. Political prosecutions of this kind are sadly not uncommon in America, and have only become more prevalent in the age of partisanship and a politicised judiciary. But what is utterly, shockingly new is its naked use against a Presidential candidate. Nothing Trump across his entire, sordid career — not his handling of the Charlottesville riots, not even his refusal to accept the results of the 2020 elections — comes close to the level of damage this will inflict on the American body politic. 

Much of the country was able to dismiss Trump’s claims of election rigging in 2020 as a case of sour grapes. But if Trump is prevented from campaigning because he is under house arrest, in court, or even in prison, and goes on to lose the election, his complaints will be fully vindicated. Half the country will not accept the result, and the resentment will fuel the populist right for decades to come. 

But of course, this prosecution could easily help Trump. Polling has already suggested that a Trump conviction will not change minds — moderates are not going to suddenly flock to Biden because of this result. But it will mobilise and energise his core voters, and lend credibility to his populist messaging. Biden’s best hope, the narrative that won the 2020 election, was to cast Trump as a divisive failure, and himself as a competent peacemaker. That’s over now, for good. 

So much for the immediate, grave political consequences. But the deeper implications are far more frightening. With naked political prosecutions reaching this new extreme, and extending even to former Presidents, nobody is safe. Biden may be the next one in a courtroom, should he lose this election — and years in court, and the risk of jail, could be the new normal for American leaders. 

The logic of escalation dictates that if one side believes the other will stop at nothing, then neither will they

Talk of civil war in America is deeply silly at one level, but civil division and disorder need not be a literal battlefield to represent a catastrophe. The weaponisation of law and administration against political opponents is a lethal new development that will tear apart America. Nor will it stop at politicians. Organisations and campaigning groups will also come under the gun. You don’t just assassinate the leadership – you blow up the bridges, you bomb the infrastructure. Controversy is already raging on the US right about the dominance of liberals in the administrative state, and the use of the IRS to “target” conservative charities and groups. And after them? Ordinary people — from religious groups to individuals “cancelled” for saying or believing the wrong thing. 

The dangerous thing about these narratives, is that even when untrue or exaggerated, they are self-fulfilling prophecies. The logic of escalation dictates that if one side believes the other will stop at nothing, then neither will they — and they seek to win by escalating further and faster. The Democratic Party believes Trump is a dictator in waiting, and thus are willing to incinerate the credibility of the courts if they think it will stop him. One can only imagine what norms Trump will be willing to discard in retribution.

And amidst all of this chaos and division, it will be the American people that lose out. Real problems — of economic inequality, global instability, urban decay and social breakdown — will be drowned out by the noise. Lives, families and communities will be torn apart by these divisions, or have their imaginations and minds narrowed by them. It will have to stop somewhere and somehow — someone will have to “write the end to it” — but that ending is now further off than ever.