Donald Trump is winning the messaging wars over his indictments

The criminal prosecution of Trump comes at a political price

Published August 9, 2023 9:00AM (EDT)

US President Donald Trump speaks at "Save America March" rally in Washington D.C., United States on January 06, 2021 | Special counsel Jack Smith (Photo illustration by Salon/Getty Images)
US President Donald Trump speaks at "Save America March" rally in Washington D.C., United States on January 06, 2021 | Special counsel Jack Smith (Photo illustration by Salon/Getty Images)

In Little League baseball, the "mercy rule" allows truly lopsided games to be stopped in order to spare the losing team further humiliation. Over the last week, in the wake of his latest indictment, Americans have witnessed another truly lopsided contest as Donald Trump and his legal team have demonstrated their mastery of political messaging once again.

Whatever the legal merits of the various charges against the former president, he is succeeding in turning his legal woes into political benefit. Instead of turning off his supporters, the charges against Trump have further cemented the already tight bond between him and his followers. And, as a just-released CBS/YouGov poll suggests, the criminal prosecution now seems to be convincing some independent voters to see things Trump's way.

A lesson from abroad

Americans are learning what other nations have also witnessed. Whether it is Silvio Berlusconi in Italy, Benjamin Netanyahu in Israel, or Trump, nothing helps an authoritarian leader as much as if they can pose as a martyr of a politically motivated prosecution and a protector of their people from hostile political forces arrayed against them. 

And that is exactly what Trump has been doing.

He has set himself up as all that stands between his people and the oppressive onslaught of the elitist and corrupt Biden administration. And he has framed what is going on in ways that are easily understood. Most importantly, he has positioned himself as the heroic defender of American values, like freedom of speech.

In June, after being indicted for illegally possessing classified documents, Trump used a speech at the Faith and Freedom Coalition Conference to say that the charges were not directed just against him, but were targeting the millions of Americans who support him. As an ABC News report noted, during his remarks, "Trump, as he often does, cast the criminal cases against him as an escalating campaign of political persecution." He used that speech to turn the tables and offer his own indictment of President Biden. "Joe Biden has weaponized law enforcement to interfere in our elections, the greatest abuse of power that I've seen, that most of you have seen in the history of our country," Trump said. "It's a hoax."

And he said that "Every time the radical left Democrats, Marxist, communists and fascists indict me, consider it a great badge of courage. I'm being indicted for you." Trump added, "and I believe the 'you' is more than 200 million people that love our country that are out there, and they love our country. This is a continuation of the greatest witch hunt of all time."

Trump's "I am being indicted for you" claim has become a staple of his post-indictment political rhetoric. The former president repeated it in an appearance at a South Carolina fundraiser soon after Jack Smith's August 1 indictment for his effort to overthrow the 2020 election results.

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There he also insisted that the indictment was a cover for the Biden administration's "outrageous criminalization of political speech. They're trying to make it illegal to question the results of an election."

A winning message

Last Sunday, Trump's lawyer, John Lauro, went on five of the major morning news and gave a master class in political communication. 

Keep it simple. Use emotionally powerful catchphrases. Repeat and amplify the message. 

In none of his television appearances did Laurohe ever mention the special counsel. Instead, echoing Trump, he repeatedly referred to the Biden administration's "persecution" of the former president. And when he was asked about the prospect of televising Trump's trial, Lauro responded by following his client's lead in framing the question as one of the Biden administration versus the American people, 

As he put it, "I'm convinced the Biden administration does not want the American people to see the truth."

From one appearance to the next, Lauro reiterated that everything alleged in the August 1 indictment is "core, First Amendment protected speech." He characterized Trump's conduct as a "constitutional disagreement" and insisted that "never in our nation's history have those kinds of disagreements been prosecuted criminally.

Lauro even turned the tables on his interviewers and said he was surprised that their networks were not joining him in opposing the Biden administration's effort to get a protective order forbidding disclosure of any material the government turns over to the defense during the discovery process. 

He called that effort a threat to freedom of the press.

Listening to him I was almost convinced.

And so it seems are many Americans. As evidenced in the CBS/YouGov poll, the nation's existing deep partisan divide best characterizes the reaction to Trump's legal troubles. For example, while 88% of the respondents who identify as Democrats said that the investigations and indictments of Trump were necessary to uphold the rule of law, only 28% of Republicans concurred. And, while 31% of Democrats thought that the prosecutions were aimed at trying to stop the Trump campaign, 86% of Republicans held that view. A substantial number of Trump's supporters are buying his assertions that the indictments are "an attack on people like them," as 77% of what the poll labels MAGA Republicans agree with that statement, as do 42% of the non-MAGA Republicans.

If that were not enough to sound the alarm bells for Democrats that Trump is succeeding in following the playbook that other authoritarians have used when they have been accused of crimes and corruption, it is hard to see what would be.

Yet there is more.

The CBS/YouGov survey found that Trump's messages may be resonating beyond his base. According to the survey, 37%, of independents do not believe that President Biden was the legitimate winner of the 2020 election. And even more of them, 41%, agree with Trump that Jack Smith's indictment for Trump's effort to overturn the 2020 election was "politically motivated."

A needed intervention 

Long before Trump came on the scene, Republicans mastered the art of political communication for the media ageAfter all, the GOP popularized fear of the "death tax" in their campaign to end taxation of estates and pushed the lie that Obamacare would mean that "death panels" would be making life and death decisions for Americans. But Trump has taken that kind of messaging to new heights.

During his term in office Trump was a master of what political scientists Mikael Good and Philip Wallach call "the Emotive Presidency." As they explain, "A seasoned entertainer, Trump unified his supporters by giving vent to their emotions. Employing cadences borrowed from stand-up comics and radio shock jocks, Trump transformed populist rage into a positive emotion: gleeful shared mockery of the politicians and elites who had betrayed the true Americans."

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People don't like Trump, Good and Wallach argue, because of his policy positions. They like him because of the feelings he evokes in them. He managed, they say, "to stir up the nebulous emotion of his base such that it became a political phenomenon with genuine unifying force."

In response to the indictments, Trump is doubling down on that effort, and is, so far, succeeding.

Democrats can't afford to ignore that fact.

But so far they have not figured out what to do. They worry that if they respond directly to Trump and defend the indictments, they will confirm his story of being victimized by a political prosecution. However, they cannot stand idly by much longer if they are to have any chance of winning the political battle that Trump's indictments have unleashed. They need to quickly agree on their message, identify their most effective communicators, and start getting them out to the American public before the score is so lopsided that it will be necessary to invoke the political equivalent of Little League's mercy rule.

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

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