Art of the Plea Deal

After reading this, many readers will accuse me of Trump Derangement Syndrome (TDS). I believe I suffer from a different ailment, DAS: Democracy Addiction Syndrome. And Daddy needs his fix.

Today’s post is an updated version of one I wrote a year ago. While things have changed — a lot — since last August, my argument not only holds up, it’s gotten stronger.

Trump & Math

It’s increasingly likely Trump will exit the presidential race in exchange for an omnibus deal, across jurisdictions, that keeps him out of jail. The rise of Kamala Harris and the growing probability that the former president will lose in November make the logic colder and more compelling. Opinion polls show Harris ahead of or tied with Trump in six of the seven critical swing states. She’s beating him, for instance, in North Carolina, which he just barely won in 2020, and where Biden had been struggling even before the debate disaster.

It’s not the poll numbers themselves, which are all within the margin of error, but the Harris/Walz ticket’s momentum going into the DNC, which historically provides a 4- to 6-point polling bump. By the end of month, Harris could have a high-single-digit edge with nine weeks until election day. This is similar to the margin that compelled Nancy Pelosi to march up to the West Wing and tell President Biden to sign his resignation … with his pen or his blood.

Felon

This May, Trump was convicted of 34 counts of fraud by a New York jury in the Stormy Daniels case, the weakest case against him. Sentencing has been held up while he appeals, and it’s unlikely he’ll see any jail time, as a first-time, nonviolent offender. The other cases — federal trials involving January 6 and the allegedly illegal possession of classified documents, and the Georgia case about trying to overturn the 2020 results there — are different stories. They’re much stronger, but have been delayed by Trump’s appeals and moves to get judges and prosecutors replaced. None of them will come to trial before the election, and if he wins they probably never will. If he loses, though, he will face trial and the real possibility of conviction and incarceration; it’ll take time, but the gears of accountability and justice grind forward.

Harris has revitalized her party with a campaign that emphasizes youth, optimism, and hope for the future. She’s done this by saying (wait for it) nothing. Trump has done her job for her as he continues his grievance/rage tour. The age issue has turned from a bug into a feature for the Democrats. The Earth has shifted under Trump, and he’s stumbling. Recent better inflation numbers and the likelihood of a Fed rate cut soon will help Harris, too.

Also, somebody forgot to tell Trump he’s no longer running against Biden; he’s ranting that the guy who dropped out weeks ago is “close to vegetable state” and hallucinating scenarios in which Biden still gets the Democratic nomination. If “Get off my lawn” were an LLM, it would be the Trump campaign.

Crime and Punishment

President Trump is an obese 78-year-old male. The average 80-year-old has a life expectancy of (another) 8 years. Trump’s obesity and prison would probably cut that in half, meaning any sentence greater than 48 months is a life sentence. Incarceration, balanced against a life (post-deal) of golf clubs, sycophants, and porn stars, should weigh heavily on even the most delusional psyche.

How serious is the threat of prison? Federal prosecutors rarely lose: In 2021, 94% of defendants charged with a federal felony were convicted. State and local prosecutors convict at high rates as well — the Atlanta office which indicted Trump boasts a 90% conviction rate. Of those convicted by the feds, 74% received prison time. In cases for mishandling national security documents specifically, the DOJ regularly obtains multiyear sentences. And the documents case against the former president is notable for the weight of the evidence, including audio of him sharing military secrets he admits weren’t declassified, the sensitivity of the papers, and his blatant obstruction — offenses the DOJ and courts take very seriously.

It’s not any one case that cements Trump’s fate, but the compounding risk of his several indictments. Generally, defendants have a 3 in 10 chance of escaping an indictment without prison. A 30% chance of prevailing, four times in a row, is just under 1%. That’s a 1% chance of not going to prison.

This Is Different

OK, but Trump is not a typical defendant, and no case against him will be straightforward. He has unlimited resources and can deploy the full apparatus of a billionaire’s legal defense. In addition, there is a non-zero probability any jury will have a Trumper who refuses to convict. Also, prosecuting each case presents obstacles, not least of which is the Supreme Court decision granting Trump immunity for official actions as president. So let’s improve his odds of exoneration from 3 in 10 to 8 in 10 — only a 20% chance in each case that he’s convicted and sent to prison. The math is still ugly: 0.8⁴ = 0.41, which means Trump has only a 41% chance of escaping prison, even when given exceptional odds. The most favorable math still lands him in prison.

Get Out of Jail Cards

There are two: 1) He retakes the White House, or 2) he (see above) reaches a plea deal.

The prison vaccine is Trump winning the presidency, or another GOP candidate winning and pardoning him. That resolves the federal charges — the greatest threats — and Trump likely believes he or some other Republican president could shut down the remaining prosecutions. Note: If he were totally focused on staying out of prison, he’d find a way to draft Nikki Haley to take his spot at the top of the ticket. I believe she’d win, cosplay Gerald Ford, and pardon Trump. Think about it.

Swingers

Ninety percent of the states are foregone conclusions. (Harris holds a 24-point lead in California; Trump has led Biden by as much as 19-points in South Dakota.) Pundits agree that only a handful of states will matter.

Harris only needs to win three of these states to take the White House: Michigan, Pennsylvania, and Wisconsin. And the odds are looking good, great even. Biden won all three in 2020. Plus there’s the Sun Belt. In North Carolina, where Harris is now ahead, reflects how change hasn’t been good for Trump. He won the state in 2020 by 1.3%. But it’s in transition, a microcosm of the broader challenge the GOP faces: Its base is older and whiter, and that population is giving way to a younger, more diverse, better-educated electorate — more likely to vote blue.

Nationwide, since Trump won the White House in 2016, 32 million young people have become eligible to vote, and 20 million elderly voters have died — a swing of as much as 52 million voters. These younger citizens vote in greater numbers than previous younger generations, and they show no signs of becoming more conservative as they age. This will be the Gen Z(oom) election.

Devaluation

The closer we get to a Trump loss in 2024, the more his currency for a plea deal diminishes. A loss would cement the notion that he has cost the party too much for too long. Traditional Republican leaders are jonesing to see the back of Trump, and his acolytes now have power bases of their own. Fox will abandon him, the cloud cover provided by Lindsay Graham, Sean Hannity, and other sycophants will disappear, and the pool of jurors who’d refuse to convict will shrink. He’ll also lose access to any backroom influence his political allies might bring to bear on the DOJ or state and local prosecutorial offices. His currency is a single token, his potential return to the Oval Office. Once that’s gone, so is his leverage.

Trump won’t like making a deal, but the decision will be easier than many people think. He has no observable ideological commitment or loyalty to the Republican Party. In the 2022 midterms, Trump amassed a war chest of $108 million and gave … zero to GOP candidates.

And he gives up all the time. His track record is quitting: from his six bankruptcies, including the Trump Taj Mahal Casino, to his innumerable abandoned projects, such as his defunct New Jersey Generals football team and the disgraced education for-profit Trump University. And people who know him, including his former chief of staff, John Kelly, and his former footstool, Chris Christie, say he has a real fear of going to jail.

In sum, Trump’s odds of landing in prison are perhaps 50/50 right now and likely to get worse as we approach the election.

Deal or No Deal?

Is there a deal to be had? It wouldn’t be easy, but the array of prosecutors could work together to strike an agreement, for their own sake and the good of the nation. A coordinated negotiation would be complex, but nothing precludes the effort. The alternative is worse: Trials would be circuses, convictions would be subject to years of appeals, and any ultimate incarceration would be a logistical nightmare. And when we step back from the details of these cases, what should the U.S. be seeking? Is it accountability? Or for the nation to move on? The answer is yes, and a plea deal achieves this.

There’s a broader lesson here. Our successes and failures are not a function of probability, but patterns. Our actions, like interest, compound. A single kind act may go unnoticed, but kindness fosters enduring relationships and goodwill. Criminal acts may or may not result in punishment. But criminality screams for justice’s attention. And justice, while slow to act, is always listening.

Life is so rich,

P.S. This week on the Prof G Pod: Office Hours I share some of my favorite moments answering listeners’ questions on career advice. Listen on Apple or Spotify

P.P.S. Join Section next Wednesday for a free event on Navigating AI Data Privacy. Greg Shove will talk through common pitfalls, easy fixes, and developing an AI data policy for your org.