It’s looking more and more like Donald Trump will be indicted and arrested soon (if it hasn’t happened already by the time this article is published.) I’d like to share with you, brothers and sisters, my limited experience of how this all works. I’m referring to my experience as an advocate for the survivors of Bill Cosby and what Cosby’s indictment and arrest looked like in the arena of online debate.
I’m not talking about the mechanics of his arrest, mind. I imagine that will be more or less the same for Trump as it was for Cosby. But I do like to write it down even so, because it will be a real pleasure to see Trump subjected to the usual indignities: mugshot, fingerprinting, hauled before a judge, arraigned, trial date set, bail set, passport surrendered, (remanded into custody perhaps?), and so on. Alas, it’s doubtful that Trump will be subjected to a “perp walk” — ironically made famous by Rudy Giuliani — but you can’t have everything.
But I’m not referring to all that procedural stuff. No, what I’m referring to is something that you’re now going to hear and see over and over and over until you’re sick to death of it. You’re going to hear and see, spoken or written in a way that’s dripping with smug, authoritarian indignation, the words, “I’m sorry, but last time I checked he’s innocent until proven guilty! Until then you have no right to say otherwise!” Nonsense. Don’t believe a word of it.
This rubbish stems from the phrase, first coined by Sir William Garrow in 1791, that a defendant is “presumed innocent until proven guilty.” As far as it was originally intended he was right, but I do wish he’d framed the idea a little more precisely. What he really meant to say is, in the eyes of the court and inside a courtroom, the defendant is to be presumed innocent, and it is the burden of the prosecution, and the prosecution alone, to prove otherwise.
Outside of a court of law, your freedom of speech remains guaranteed by the First Amendment of the US Constitution, and it will not be infringed. (Throw that one particularly in the faces of the Second Amendment People). You are welcome to offer your opinion on the guilt or innocence of Donald Trump anytime you please, and the federal government cannot and will not infringe that right.
What I think what Sir William was saying is just another way of saying that the burden of proof lies exclusively with the prosecution. It is legally incumbent upon the prosecution to prove the defendant’s guilt beyond a reasonable doubt and to a moral certainty. It is the jury’s duty to adjudicate the success or failure of the prosecution’s effort to meet that burden. In the meantime, and inside the courtroom, the defendant is to be considered not guilty, with most — but not all — of the all rights and privileges that condition implies.
Since I am not a member of the prosecution or jury I am free to “presume” whatever I jolly well please, thank you very much. Therefore, and in keeping with that right, I say that I am convinced, beyond a reasonable doubt and to a moral certainty, that Donald John Trump is guilty of misappropriation of campaign funds. I think Trump is guilty of a hell of a lot more than that, too, but we can start with that.
Even lawyers are confused about this “innocent until proven guilty” business. I know because I actually debated one about it once. To be clear, she was a defence lawyer who “claimed” to believe that Bill Cosby was not guilty. At the time I debated her, Cosby had yet to be tried. I didn’t believe she really thought Cosby was not guilty then and I don’t believe she does now. I think she pretended to take that position because it was good for business. Secretly she knew Cosby was guilty, just like any other reasonably intelligent person.
Anyway, she maintained I was morally reprehensible for publicly proclaiming Cosby’s guilt. I told her I thought she was morally reprehensible for defending him when he wasn’t even her client. Anyway, I think I won that debate because she finally resorted to personal attacks and abandoned the thread. Always a good sign.
So you are free to make a summary judgement, brothers and sisters. That is, you are free to arrive at a verdict without the messy prerequisite of waiting for the jury to decide. It’s their job to pass judgement on the success or failure of the prosecution’s effort to defend their burden, not yours. You can do whatever the hell you please.
My friend Mark Allenbaugh, who is a lawyer and legal analyst, thinks Trump will either be remanded into custody as a flight risk or he will flee the country. I think neither will happen. So we have a small bet and a book of our choice is the winner’s prize.
Don’t get me wrong, I would love to see Trump go to jail while awaiting trial. I think if he does there’s a very good chance he will never again see the light of day again. He will remain and remain through one indictment after another until he’s finally sentenced. I would also like to see him try to flee the country. It would seriously demoralise his drooling MAGA base and prove we were right about him all along.
Make no mistake, though, if Trump tries to instigate another January 6 style insurrection, the judge should throw his butt in jail faster than you can say “Hillary Clinton.” Don’t be surprised if he tries. Don’t be surprised, with all his incendiary language of late, he’s already tried.
In short, there has never been a bet that I have ever more fervently wished to lose. We shall see. Let’s make arrests great again. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.