What does this election look like?

Conducting an election where one candidate's guilt or innocence is the core issue

Let’s take a moment to imagine what, at this point, is a fairly likely scenario for the fall of 2024: Donald Trump is the Republican presidential nominee, and he is the defendant in multiple ongoing state and federal trials. What does that election look like?

It’s possible that one or more of these trials will have already taken place — perhaps he’ll even have been found guilty but is still running for president. It’s also quite likely that more of these trials will still be pending.

Obviously allegations of criminality have been central to the last two presidential elections. Hillary Clinton spent the 2016 debates noting Trump’s complicity in a range of crimes and scandals, and Trump vowed to prosecute her (indeed, “lock her up”) upon his election. Trump was impeached in 2020 for using the foreign policy community to try to gin up criminal allegations against Joe Biden.

But none of this would be even remotely like a 2024 race, where one candidate is on trial for trying to violently overturn a previous election, and in which the outcome of the election likely determines whether he spends the rest of his life in federal prison.

How do you have an election like this? How is any other issue discussed?

Yes, there have been gubernatorial elections and leadership elections in other countries where a prominent candidate has been convicted or faces imminent conviction, but a few things would stand out about the US presidential race.

Notably, one pattern we’ve seen in party polarization is that people have a remarkable gift for rationalization. That is, people don’t look at the news and then use it to decide which party or candidate to support that day. Rather, they have already decided which party or candidate they like, and they interpret the news in a manner that validates that earlier choice. That doesn’t mean that people never change minds about a candidate — a number of prominent Republicans refused to support Donald Trump in 2016 and 2020, for example — but their numbers are few.

Given these polarization patterns, particularly around Trump, we can pretty reliably bet that the electorate will have cleaved on the very basis of the trial. Nearly all Biden supporters will believe that Trump is guilty of very serious crimes. Nearly all Trump supporters will believe either that the Department of Justice is an illegitimate and out of control authority that should be ignored or resisted, that Trump was correct that there was massive election fraud in 2020, that the President pressuring government officials to overturn an election isn’t a big deal or is protected by the First Amendment, or some combination of the above. And they won’t just be hearing that from Trump; many of his current Republican rivals are already saying this.

That’s a setup for a truly awful election, one in which Trump’s guilt or innocence is the only issue under discussion, one that will affect the outcome of any trials, and one that either losing side will view as the end of American democracy.

Remember the first debate between Biden and Trump in 2020? Oh, that was fun. Try to imagine what such a debate would look like in 2024, if it even happens. The moderator would repeatedly ask Trump, “Do you vow to peacefully accept the outcome of this election no matter what the result is?”, and it would be an absurd question because we already know the answer. Trump would probably say, as he has in the past, that he’ll accept the results if he wins, and then immediately pivot to a rant about Jack Smith and Merrick Garland and Hunter Biden. Would any other issue even be discussed?

As has become quite clear, Trump is in very serious legal trouble. While I have no doubt he sincerely wants to be president again, he likely also views returning to the White House as the only way to avoid prison time. (His odds for winning the presidency are likely below 50-50 but significantly better, I’d imagine, than his odds of evading the 3-4 prosecutions currently pending against him.)

It would also be wise for some of his Republican rivals to offer a tacit deal for him to withdraw in exchange for their pledge of a pardon, with the reasonable suggestion that another candidate would have an easier time defeating Biden and thus protecting Trump from federal prosecution. However, 1) Trump likely believes that he is the most electable candidate, as do most of his supporters, and 2) another president wouldn’t be able to pardon him for crimes under New York or Georgia laws.

Making a candidate’s innocence or guilt (particularly on the question of “using dishonesty, fraud and deceit to obstruct the nation’s process of collecting, counting, and certifying the results of the [2020] presidential election”) the core issue of the 2024 presidential election is, truly, an awful scenario, and one that would likely lead to significant political violence. And it is one that we can easily see coming. Can it be averted?

In theory, the Republican Party is the one institution with the power to avert this situation. However, it clearly does not have the desire, and even if it did, the ability of party leaders to steer the nomination contest away from the candidate that the grassroots so clearly want seems negligible, at best.

Could Trump removing himself as a candidate be part of a plea deal? Possibly. And that would put the presidential nomination contest in uncharted territory. But again, that would require Trump to think that he’d otherwise lose to either Jack Smith or Joe Biden, and it’s not clear he’ll ever believe that.

We may well be on our way to an election season that will make you long for the civility and rational discourse of 2016.