Is Trump the victim of a two-tier justice system?

Since Donald Trump arrived on the political scene in 2015 and throughout his four years in the White House and up until the present day he has consistently maintained that he is the victim of a vast conspiracy led by the mainstream media and the “deep state.”

That sentiment strongly resonates with many of his supporters who feel that the system is stacked against them and rigged in favor of wealthy and politically connected urban coastal elites.

Many in the Trump camp see their candidate as one who speaks directly to them and represents their interests, as opposed to special interests and global concerns. And Trump’s base is growing to include key Democratic constituencies such as African-American and Hispanic voters, polls show.

As Trump seeks the White House, he is without any serious primary challengers and is for all practical purposes the presumptive 2024 GOP nominee. Polls show Trump either beating or dead with President Joe Biden.

Both Trump and Biden have come under scrutiny for the willful retention of classified documents. Trump has been charged and the case is ongoing. The former president has pleaded not guilty to the charges.

Biden will not be charged, Special Counsel Robert Hur said in a report that was released on Feb. 8. Hur said in the report that part of the reason for not bringing charges against the 81-year-old president stemmed from Biden’s presentation of “poor memory” in a recent interview.

Biden has vigorously insisted that there is nothing wrong with his memory and the White House has slammed that aspect of the report. But that has not stopped the president’s critics from questioning his fitness for office.

Double standard? 

“I think this is an appalling example of a legal system that discriminates in favor of liberal principals, not of one that prosecutes conservatives unfairly,” said Richard Vatz, professor emeritus of political persuasion at Towson Unversity. “Let me make clear that both, not neither, of the two, President Biden and Donald Trump, should have been charged for these serious crimes.”

Vatz elaborated on that point.

“It is absolutely inexplicable that Robert Hur’s reason not to charge President Biden for his retention of such documents following his vice-presidency was that jurors might excuse Biden’s behavior as being mitigated by the fact that his ‘memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023.'” That jurors might take something like Biden’s memory into account is not relevant to his prosecutability. And Trump’s culpability should not be excused because of prosecutors’ inconsistent lack of holding Biden responsible.”

The Trump cases and ballot challenges 

In all, Trump has been indicted 91 times on charges that stem from four criminal cases. Trump also faces a handful of civil cases and in one of those cases was found liable for sexual abuse and defamation.

Those who fear a second Trump presidency are not going to go down without a fight.

The former president’s political opponents have resorted to efforts to try to remove him from the primary ballot, claiming his alleged role in the January 6, 2021 “insurrection” attack on the U.S. Capitol renders him constitutionally ineligible to hold office.

But the U.S. Supreme Court appears likely to throw out a Colorado Supreme Court decision that upheld that claim after it was rejected by a lower court. And a decision by Maine’s Democratic Secretary of State, Shenna Bellows, to remove Trump from that state’s ballot is on hold until SCOTUS reaches a decision in the Colorado case.

A ruling against Trump could give other states the green light to remove him from the ballot.

At the heart of the case is the question of whether states can unilaterally kick a candidate of the ballot, and whether the 14th Amendment’s prohibition on federal officials who engaged in an insurrection against the U.S. from holding office pertains to a president. Trump has not been charged nor found guilty of aiding and abetting or engaging in insurrection.

In response to efforts to remove him from the ballot, Trump has sounded the alarm to his supporters. The former president has characterized the effort to nullify him as an effort to nullify the voices of the American people.

Is Trump right? Or is he merely peddling grievances? 

“Donald Trump is a damn-near 80-year-old white man. What two-tier justice system is he subject to?” Former Republican National Committee (RNC) Chair and former Md. Lt. Gov. Michael Steele told the Baltimore Post-Examiner.

Steele, a frequent Trump critic and MSNBC commentator, dismissed both the veracity of Trump’s two-tier justice system narrative and the claim that it might resonate with minority voters.

“It’s bull! It is co-opting a narrative for Donald Trump that is laughable…It’s February. Let’s have this conversation in September. Stop it! I’m just tired of the press playing this game where they act like anything right now means something. It doesn’t! There is a whole lot that is going to happen between now and next Tuesday, let alone September or October.”

Steele said the effort to remove Trump from the ballot is unlikely to hurt Democrats unless it becomes more widespread or is struck down by SCOTUS.

“I think in the end it’s a wash. I don’t think a lot of folks are really connected to it narratively. So they have no stake in what happens. It’s not an effort that’s underway in their state necessarily…From that standpoint, there is not a whole lot of meat there at this point.”

Steele said that even if Trump is elected and then subsequently convicted of a crime, the system ultimately will adapt to the chaos.

“They (the jurors) will have the unenviable task of voting twice. Once, on whether he (Trump) should be president. And another time, on the crimes for which he is charged. There are a whole lot of new and interesting dynamics that Donald Trump’s behavior has placed the country in that we now as a nation have to confront because we had a severely flawed individual serving in that office…The courts will have to adjust and deal with that. But they should only be concerned about the judicial clock, not the political clock.”

But Hans von Spakovsky, a Senior Legal Fellow at the Heritage Foundation, said the situation could become explosive, as there is already strong public concurrence with the two-tier justice system narrative.

“We see it in the polls that people believe we have developed a two-tier justice system. They see the Justice Department doing everything it can to refuse to investigate and prosecute Hunter Biden and then offer him a sweetheart deal that would have allowed him to walk away with no jail time despite very serious charges. And then they see all the prosecutions of Donald Trump and others.”

Hunter Biden faces federal tax and gun charges. He has pleaded not guilty to the charges.

Spakovsky, a former FEC commissioner and former Justice Department attorney, emphasized that it is not necessary to have a favorable opinion of Trump to agree with his two-tier justice system narrative.

“The issue here is what Pandora’s box you would open up if you decided that state authorities had the power to decide whether a qualified presidential candidate should be on the ballot or not.”

Spakovsky said such a decision would have the potential to hurt both major political parties.

“The secretary of state in Maine decided on her own that Donald Trump was guilty of insurrection and therefore should not be on the ballot. But what if a secretary of state in a red state decides on his own: ‘Well, Joe Biden, he is guilty of treason. He has intentionally and deliberately opened up our border and is allowing millions of illegal aliens to come across the border. Therefore I am not going to allow him to be on the ballot.'”

How might the two-tier justice system narrative affect the election?

“I think the effort to keep Trump off the ballot might have solidified Trump’s support, but I don’t think it appreciably increased it, in the Republican Party. It’s hard to imagine any of Trump’s primary opponents having the ability to knock him out as the party’s standard-bearer,” said John McTague, a professor of political science at Towson University.

“The legal proceedings against Trump probably mobilized some support that would have come to him anyway, even without the ballot challenges. Now, when it comes to the general election, I don’t think having January 6, 2021, as a defining issue in the campaign will help Trump. The general electorate is not the Republican primary electorate. This has always been Trump’s chief liability. He is popular among Republicans and Republicans only. If that’s true in 2018, then I do not think 90-something felony charges on top of that underlying unpopularity help…When your best argument in a sporting event is to complain about the referees, it’s not a sign of strength, is it?”

Tom De Luca Jr., a professor of political science at Fordham University in NYC, said the effort to remove Trump from the ballot might very well play into the candidate’s hands.

“I think any effort to keep anyone off the ballot looks bad in public opinion for the candidate who would benefit. In that sense, it can also play into Trump’s two-tiered legal system grievance.”

However, De Luca also said that if Trump is ultimately convicted on insurrection charges, the argument for keeping him off the ballot might become more potent.

“In general, it’s not a smart political strategy, but there are these mitigating factors that may make it less unattractive. However, if you can actually keep him off the ballot in one or more must-win states (or at least swing states) for Biden, then it might be worth it, especially given these mitigating factors. (To date, I don’t think any of the viable cases do that. An unlikely win in the Supreme Court could change that).”

And if Trump is both convicted and elected, the situation becomes even more complicated, De Luca said.

“If Trump is convicted this will probably leave about 75% of his voters feeling the system is gamed against him, and them and that the “deep state” has won. However, what would actually happen if a president or president-elect is convicted of a federal crime? If he is already the president, could he simply pardon himself? What then would happen? If he’s the president-elect would he post bail and appeal? If the Dems retook the House in 2024, would they then impeach him and send a quick trial to the Senate in early January before inauguration? Would there be a Supreme Court case? Would the chief justice swear-in a convicted felon? Any of these scenarios would likely deepen even more our polarization, but how much, and how dangerously?”

A University of Massachusetts Amherst poll released on Feb. 7 showed that a plurality of voters (41%), said Trump should not be on the ballot because of his alleged role in the Jan 6. attack.