Trump Thinks He’s Found a New Defense

In his response to an adverse decision by the Supreme Court, the former president previewed an argument he’s likely to keep using.

Donald Trump
MANDEL NGAN / AFP / Getty

About the author: David A. Graham is a staff writer at The Atlantic.

Former President Donald Trump faces various legal and political challenges, but few seem to have gotten him as agitated as a routine, expected, unsigned decision by the Supreme Court on Monday.

Trump had already lost a bid to prevent Manhattan District Attorney Cy Vance Jr. from acquiring his financial records via subpoena. The former president then sought a stay while he searched for other means to stall. As anticipated, the justices rejected the request. Trump then issued one of just a handful of public statements he’s issued since leaving office, blasting “the Continuing Political Persecution of President Donald J. Trump.”

His vehemence is part of a long-running pattern: Trump dislikes all investigations, but nothing rattles him like probes into his finances. (When he tried to fire Special Counsel Robert Mueller, it was because of a report that Mueller had subpoenaed his financial records.) We can guess at the reasons. First, Trump is extremely defensive about anything that might imply he is not as rich as he claims. Second, there is much to suggest that Trump might have committed financial crimes.

Reading Trump in the medium of the emailed statement, post–Twitter ban, remains disorienting. His statements maintain the vitriol of his tweets, but they have none of the concision, instead meandering through long lists of grievances. Nonetheless, the outlines of how Trump might try to frame his defense against legal investigations in the next stage of his career are starting to emerge.

Trump makes four main claims: I’ve already been investigated, and I was found innocent; this is a fishing expedition by prosecutors; this is a politically motivated prosecution; and I got 75 million votes in the 2020 election. There’s a mix of the true, false, and irrelevant here worth teasing apart, but it’s the last claim—that the fact that so many people voted for him means he can’t be guilty of any crimes—that is most likely to endure, and most dangerous.

  1. I’ve already been investigated, and I was found innocent.

Trump has certainly been investigated, but he has not been cleared. He cites Mueller’s investigation, which ended without charges and did not accuse Trump of collusion with Russia. But the special counsel did not consider charges, or claims of criminality, because of Justice Department guidance against charging a sitting president. While Mueller’s investigation did not establish “collusion” (not a legal term), it did note multiple contacts between the Trump campaign and Russian officials. Trump also mentions his two impeachments. In both cases, the Senate failed to muster the two-thirds majority necessary to convict Trump and remove him from office, but the hearings revealed extensive incriminating information, and in the second impeachment, most senators were convinced of his guilt. Moreover, none of this touched on his personal finances.

  1. This is a fishing expedition.

Trump is probably right. It’s impossible to know quite what Vance’s office knows and what he’s looking for, but we can speculate. Based on what is already in the public domain, there are lots of reasons to believe that Trump was not following the law on taxes. Tax returns obtained by The New York Times chronicle extensive chicanery. Other documents, obtained by ProPublica, and testimony from former aides such as Michael Cohen (whatever his word is worth) say the same. But financial crimes are tough to prosecute. Trump would likely say that he was acting in good faith, relying on the advice of lawyers and accountants. Vance might be looking in the records for some evidence showing that Trump was warned he was going too far but did it anyway, in order to demonstrate that Trump had intent to break the law.

  1. This is a politically motivated prosecution.

Trump is almost certainly right. From what we are able to tell, Trump (and his family) has been up to the same tricks for decades. For much of that time (as he boasted during a 2015 GOP primary debate), he donated money to politicians of both parties to obtain access that would be helpful to his business. Only since his prominence in Republican politics have Democratic prosecutors become attuned to the political benefits of aggressively pursuing him. This doesn’t speak well for New York Democratic prosecutors historically, but it also isn’t any kind of defense if he committed crimes. As Trump knows better than most people, political incentives play a role in many prosecutorial decisions.

  1. I got 75 million votes in the 2020 election.

Trump and his defenders keep saying this, although he actually got more like 74 million votes—he has long inflated his numbers, and this is less than the typical surplus. In any case, the frequent mention of the vote tally is peculiarly irrelevant at first notice yet almost inevitable upon consideration. Trump’s refusal to accept the results of the 2020 election was predictable. Not only had he been laying the groundwork to do so for months, not only had he questioned the legitimacy of the count even in 2016, when he won, but Trump’s whole career is a story of losing and then strenuously insisting that he won.

Claiming to have won is an end in itself, in that Trump’s fame and branding depend on victory, but it also prepares him for the battle ahead. In short, Trump is saying: The people voted for me, then the election was stolen from me, and now the Democrats are coming after me on taxes, and by doing so, they are denying the will of the American people.

Trump test-drove this defense during the Senate trial for his impeachment, which ended with a majority of senators, but not the two-thirds required for conviction, concluding he was guilty. “History will record this shameful effort as a deliberate attempt by the Democrat Party to smear, censor, and cancel not just President Trump, but the 75 million Americans who voted for him,” his attorney Michael van der Veen told senators. This makes little sense: Just because many Americans voted for Trump doesn’t mean he was incapable of fomenting an insurrection and otherwise trying to overturn the election, though it is literally true that Democrats hoped to legally disqualify him from ever running for office again. The charge makes sense only if you believe that Trump voters were the majority, which is false.

The argument makes even less sense in the context of the Vance investigation. The impeachment, at least, had to do with the election. Vance is examining whether Trump committed personal financial crimes before or during his presidency, which has nothing to do with his work in office.

But Trump has sought to create a connection between himself and his base that resembles more closely the intense identification between a political faction and a leader of, say, Argentinian Peronism than anything in American political history. In the winter of 2019, Trump tweeted a meme that featured himself with the caption “In reality they’re not after me. They’re after you. I’m just in the way.” Trump has sought to portray his own interest and his supporters’ as so tightly intertwined that even an inquiry into his personal foibles is somehow a threat to them.

This is nonsense. Cy Vance looking into Trump’s finances poses no more threat to the average Trump voter than Trump getting ticketed for speeding outside Mar-a-Lago—though you can bet he’d insist that was political persecution too. But careful reasoning has never been essential to Trump’s political identity. Displaced grievance has been, and it will remain so for the rest of his life.