Could Trump win by losing? Sometimes ‘nothing’ is ‘a real cool hand’

Donald Trump was back in all caps this week, denouncing prosecutors, warning of “death and destruction” if he is arrested, and even posting a picture wielding a baseball bat menacingly near a headshot of Manhattan District Attorney Alvin Bragg.

After each tirade, many of us denounced the inflammatory rhetoric while others insisted the former president was becoming unhinged at the prospect of being arrested. As if to speed along that decline, others posted viral fake AI-generated pictures showing Trump being arrested. Then Trump shared his own AI-generated photo of praying.

The fact is that Trump is in his element: In the land of rage, the most enraged man is king.

If you surf cable shows, you will see pundits in virtual ecstasy as they prepare for the possibility of a Trump mug shot or perp walk. The level of excitement could prompt Pornhub to do its first live courthouse feed.

The end-is-near predictions may be more of a fetish than a fact, however. A new Harvard/Harris poll shows 59 percent of Americans think the indictment is politically motivated, and 67 percent think the Trump payment in question was a personal expense.

Some liberal legal analysts have denounced Attorney General Merrick Garland for not expediting criminal charges against Trump with “the 2024 election cycle” in mind. If that is the measure, Trump just might have a winning hand — regardless of what occurs in these cases.

Many analysts have already addressed the dubious legal basis of the reported Manhattan indictment. The Georgia investigation into election violations is stronger, but that is not saying much; absent new evidence, the case appears to rest on highly challengeable elements.

Then there is the most compelling threat to Trump — the special counsel investigation into documents he held at Mar-a-Lago. While the Jan. 6 part of the investigation looks like another dead letter, absent new evidence; however, the classified document controversy involves well-established claims of obstruction, and not just possession of classified material.

In the meantime, Trump is doing what he does best: bringing out the worst in people.

After Bragg previously stopped the effort to pursue Trump, two prosecutors in his offices — Carey R. Dunne and Mark F. Pomerantz — resigned in protest and fueled a public campaign to force Bragg to indict.

In Georgia, Fulton County District Attorney Fani Willis rode a wave of election support in pledging to get Trump. Then Emily Kohrs, the forewoman of a special grand jury convened by Willis, went public in a series of bizarre interviews on CNN and NBC, literally giggling in excitement about nailing Trump.

If Bragg made the New York proceedings look openly political, Willis and Kohrs made the Georgia proceedings look openly comical.

In Washington, the Justice Department is dealing with the mess created by President Biden, who publicly expressed revulsion at the very thought of Trump possessing classified documents at Mar-a-Lago: “How that could possibly happen. How one, anyone, could be that irresponsible.” That was before Biden was found to have classified documents going back more than a decade in various locations, including his garage in Delaware.

In the end, the calendar rather than the crimes may determine Trump’s future.

None of these cases is likely to be fully prosecuted before the 2024 presidential election, even if they survive expected challenges. And even if Trump is convicted, that would not be a barrier to taking office. The Constitution limits qualification for the presidency to being at least 35 years old, a natural-born citizen, and a U.S. resident for at least 14 years.

Trump is unlikely to see the inside of a prison before the election. Even after the election, courts likely would allow appeals to be exhausted before ordering the arrest of a sitting president — and those appeals could take years.

On the federal charge, special counsel Jack Smith would have to finish his grand jury investigation and then convince Attorney General Garland to green-light criminal charges. He then may need to bring an indictment before the end of summer 2024, since Justice Department policy discourages filings that might affect an election. For the presidential election, that period would likely extend to August 2024.

If Smith cannot indict Trump before then, he would run into another long-standing Justice Department policy. The department has long maintained (in my view, incorrectly) that a sitting president cannot be indicted.

If Smith secured a conviction before the election, Trump could still stay on the ballot. Indeed, even if he were jailed, he still could be elected president. After all, Eugene Debs ran for president in 1920 on the Socialist ticket despite being in prison for violating the Espionage Act.

Trump literally could run on a promise to self-pardon and then immediately negate any conviction. Indeed, that issue may prove the ultimate anti-establishment rallying point for him. Trump won in 2016 in part because many of his voters wanted to stick it to the media and political elites. So, a charge or conviction before the election could well turn that anti-establishment wave into a tsunami.

Of course, Trump could not pardon himself on a state conviction. Moreover, Georgia is one of only three states that do not give pardon authority to the governor; that authority rests with Georgia Board of Pardons and Paroles. (Georgia Gov. Brian Kemp, a Republican who has long been a target of Trump’s ire, may feel relieved to have his authority limited in this instance.) However, the state could push for changes to negate a conviction or prevent enforcement against a sitting president.

To most people, that may seem like an utter mess. For Donald Trump, it is an opportunity. Trump has always found advantage in chaos. That is why, if much of the public continues to view these legal cases as political prosecutions, Democrats may be handing Trump a winning hand.

A Washington Post columnist previously declared that Trump has nothing to offer in defense to federal charges. That may or may not be true, but “nothing” could prove a major “something” in an election year.

In the film, “Cool Hand Luke,” fellow prisoners asked Paul Newman’s character why he would continually raise the stakes in a poker game when he was holding nothing of value. His reply: “Sometimes nothing can be a real cool hand.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.