Don't be afraid to see Trump go to jail

Treating him like everybody else punctures his aura of power

Donald Trump’s trial over alleged hush money payments is at roughly the halfway point, but Trump seems to have already reached the end of the presiding judge’s patience. Yesterday, Judge Juan Merchan warned Trump that he could be sentenced to a short spell in prison if he keeps making intimidating and defamatory statements about jurors and witnesses involved in the case. Trump has already been found in criminal contempt of court twice for past statements.

If the judge does decide to imprison Trump, it’s not clear exactly how that would work. It might just involve a short spell in the courthouse jail cell, or it might mean a trip to Rikers Island, a brutal prison which over the years has been plagued by abuse and illegal uses of force by guards. Trump’s spell there, of course, is likely to be without incident. He’s not only a very recognizable figure, but also a frail old man, and he would no doubt be kept in some sort of isolated, protective custody. The Secret Service would go there with him.

But if Trump does do a spell in the joint, we can expect him and his allies to try to turn it into the story of the century. They’ll use his incarceration as the ultimate symbol of the claim that he’s the victim of unjust political persecution. Most of all, they’ll try to turn it into a mobilizing force for his campaign, launching a fundraising push and trying to win over new voters with the specter of Trump’s alleged oppression. I wouldn’t even be surprised to see some extremely distasteful martyr imagery circulating on Christian Nationalist Twitter.

But I think that the Trump people have this all wrong. A spell in prison has very little upside for Trump, and a lot of downside.

A big part of Trump’s aura of power has always been his seeming ability to break the rules without suffering any consequences. He says and does things that would, in the pre-Trump era, have seen pretty much anybody hounded out of politics for ever. Even today, when he’s facing nearly 100 criminal charges, there’s an air of unreality about it all - it still seems very difficult to envisage Trump actually ending up behind bars rather than wiggling out of it all somehow. I think this is one reason that the extent of the wrongdoing he is charged with has not fully entered public consciousness. A quick trip to prison would make things seem very real, very fast.

It’s also very hard to envisage exactly who it is that would suddenly be won over to supporting Trump just because he spent a night on Rikers. I’m very skeptical that there’s a large pool of voters out there who were considering voting for Biden or not voting at all and who are suddenly going to realize that Trump is their savior just because he got held in contempt of court. If there’s a large cohort of potential voters who get off on violations of the rule of law, hasn’t Trump already done enough to reach them? If you’re going to buy into his absurd story of persecution, wouldn’t you have already bought into it long ago?

On the other hand, it’s very easy to imagine the sort of person who would be turned off by seeing Trump spend some time in the slammer. It’s not just people who are passionate about the rule of law and democracy - they likely already support Biden - but also people who are somewhat apolitical but were sick and tired of the constant drama of the Trump years. Trump’s presidency was filled with large, polarizing events which were all about his ego and personal interests and not about what’s good for the country. This trial - hush money payments to a porn actress! - is yet another one. Many voters may have forgotten just how depressing, draining and counterproductive this all was. A media firestorm ought to remind them.

These tactical considerations aside, there’s also a deeper reason to see Trump suffer consequences for his actions. Liberal democracy and the rule of law cannot survive unless they project confidence and optimism in their own values. Trump’s decision to keep continually attempting to subvert his trial is a direct and purposeful attack on those values, and such attacks can only be survived by fighting back. Extremists of various stripes are always trying to turn the freedoms of liberal democracy against themselves, yet liberal democracy survives and fights on. It can survive the MAGA challenge to, but only if it is unwilling to be cowed.

So if Trump commits acts that would see another defendant tossed in jail, then toss him in there too. He’s already been treated with remarkable deference by the criminal justice system, and that deference has not persuaded him to moderate or modulate his challenge to the constitution. Judge Juan Merchan ought to hit back - and be proud of doing it.