The Criminal Justice System Is Being Positively Kind to Donald Trump and MAGA Insurrectionists

Yet they are playing victim while showing no concern for the abuse ordinary Americans endure

(Shutterstock)

Donald Trump and his allies constantly complain that they are regularly targeted, singled out for abuse, and deliberately humiliated by the criminal justice system. They claim that there are “two tiers of justice”—a strict, unrelenting one for MAGA, and a loose, deferential one for the migrants, rapists, and killers that George Soros-funded prosecutors refuse to punish.

But even before the conservative justices in a party-line ruling handed Trump virtual immunity from fomenting an insurrection, he had been getting the criminal justice system’s “platinum door” treatment. His cases are unusual in that he’s a former president. But his status and political position have helped him far more than they have hurt him. I want to compare and contrast some of Trump and his supporters’ complaints with how the criminal legal system operates in the real world.

Treating Trump With Kid Gloves

Trump has complained that his criminal trials have been a huge inconvenience for him—keeping him from using that time to campaign for president, potentially keeping him from attending his son Barron’s high school graduation. Typically, people facing criminal charges have to show up when court begins and then sit for hours until their case is called. They’re required to take off work, or find someone to watch their kids. And those are merely the people lucky enough to be released before trial. In many courts, they aren’t allowed to have cell phones. Over the last few years, I’ve watched dozens of people wait in a courtroom, staring at the wall for half a day or more, only to learn that their case has been continued, so they'll have to do it all again in a month. I don’t know if any of them had to cancel a political rally, but many have certainly been fired, missed doctor’s appointments, or lost other opportunities. I suppose it’s possible that a judge at some point let a defendant charged with 34 felonies delay a trial to attend a graduation ceremony, but I imagine if you asked a public defender if that’s a regular occurrence, you’d need to set aside some time for the laughter to die down. Incidentally, Trump was permitted to attend his son’s graduation.

Trump and his supporters have also complained about the tactics the FBI agents used when serving the search warrant on Mar-a-Lago. Georgia Congresswoman Marjorie Taylor Greene described the raid as “the rogue behavior of communist countries,” and Steve Bannon insisted that the GOP will move to incarcerate officials who approved it. Trump himself accused FBI agents of not taking off their shoes while walking through his bedroom. As someone who has written about aggressive police raids for over 20 years, it’s hard to imagine a more pathetic complaint than that. The FBI gave Trump’s Secret Service detail a heads-up that they were coming. They deliberately conducted the search when Trump would be out of town, to save him embarrassment. When National Security Agency intelligence officer, William Binney, a whistleblower, tried to point out problems at the agency by going through internal channels, FBI agents raided his home unannounced, entered without authorization, and pointed their guns at him after finding him in the shower.

Far-right media personalities like Tucker Carlson and Laura Ingraham have also suggested that Robert Mueller’s office may have tipped off the media to maximize publicity around the raid. But of course tipping off the press about a pending arrest is a time-honored tradition among publicity-seeking prosecutors. The amusing thing about this complaint is that a carefully staged perp walk as a publicity stunt is a technique first popularized by … Trump’s personal attorney and bag man Rudy Giuliani, who used it to humiliate the International Monetary Fund’s chief. We now know that Mueller’s office did not tip off CNN. The network’s reporters had staked out Stone’s house after noticing unusual activity in court fillings from Mueller’s office. It was just good reporting.

MAGA world has also been critical of how search and arrest warrants were served on other Trump-adjacent personalities. FBI agents were accused of “manhandling” Paul Manafort and his wife during an early morning raid, which legal commentator Jonathan Turley called “excessive.” In response to the FBI’s raid on Roger Stone, Sheriff Joe Arpaio said: “I’ve been busting down doors for 50 years and I’ve never sent that many units to the baddest murderer.” (Arpaio once sent a small army of cops to raid a guy accused of cockfighting. That raid ended with actor Steven Seagal, cosplaying as a cop, driving an armored vehicle into the poor guy’s living room.) But of course the FBI and other federal agencies routinely conduct volatile, aggressive raids on people suspected of nonviolent or low-level crimes.

Here are just a few examples of aggressive warrant service tactics within a year or so of Manafort’s raid.

• A Kansas couple lost their lawsuit against police officers who wrongly raided their home after mistaking wet grounds of loose-leaf tea for marijuana.

• Police in Ohio killed a man’s dogs during a drug raid on his home. They found a single pill—for high blood pressure.

• The ACLU sued the DEA after agents pointed their guns at the heads of children while serving a low-level drug warrant on their home.

• The town of Framingham, Massachusetts settled with the family of Eurie Stamps, an innocent man who was shot and killed by a SWAT officer during a raid on his home. They were looking for Stamps’s stepson for drug crimes.

• Two Detroit women who were mistakenly raided and actually manhandled by masked DEA agents saw their lawsuit dismissed. The reason: The agents refused to provide their names or badge numbers, and the courts refused to compel the DEA to name them.

• An FBI-led raid team terrorized occupants of a home in Quincy, Massachusetts during a drug raid, found nothing, then refused to talk about it.

What is beginning to emerge is that the right-wing victimization complex isn’t merely wrong—it’s completely backwards. Trump’s allies weren’t even treated the same as everyone else—they were treated quite a bit better. The raid on Roger Stone was not unusual, nor was it violent, despite Stone’s history of associating with violent groups and vague threats against elected officials. Armed FBI agents came to his home, knocked on his door, waited for him to answer, and arrested him when he did. Similarly, despite early reports, the arrest warrant for Paul Manafort was not served with a no-knock raid. Nor was it served “pre-dawn.”

Jan. 6 Rioters More Equal than BLM Protesters

Then there’s January 6th! Increasingly over the past couple of years, Trump and his allies have complained that the Jan. 6 rioters have been singled out for abuse, especially when compared to those accused of rioting and looting during the George Floyd protests. The Jan. 6 rioters are frequently referred to as “political prisoners”—Trump himself calls them “hostages.” Let’s look at the facts.

About 70% of people arrested and charged with Jan. 6-related crimes were released on bond or under their own recognizance, including everyone charged with crimes that would qualify as “peaceful protest,” such as trespassing. Just 25% of federal criminal defendants are released pre-trial overall. If we factor in both state and federal courts, the number of people routinely detained while awaiting trial in this country is so large that there are actually more people behind bars who have yet to be convicted than people who have. But seven in 10 Jan. 6ers were released.

It is true that the conditions in Washington, D.C. jails are terrible. They’re under-supervised, unsanitary, and hellish, and have astronomical rates of suicide. When Trump was booked at the jail in Fulton County, Georgia, he complained that the facility was “poor and disgraceful,” adding, “It’s worse than you could even imagine. It’s violent. The building is falling apart.” But Trump was quickly booked and released. He didn’t spend any time in an actual jail cell.

All of the Jan. 6 defendants who were not released prior to trial were charged with serious felonies. Federal public defenders have made clear that the federal courts have been far more likely to release Capitol rioters pre-trial than other defendants. And, in fact, the D.C. federal public defender’s office went all out to make sure that Jan. 6ers received a robust defense. They ramped up staffing and enlisted attorneys from other federal offices to help. We can contrast the extraordinary efforts to make sure the Jan. 6ers were well defended to the ongoing crisis in public defense I’ve been regularly documenting. There are parts of the country where people sit in jails for weeks or even months before ever seeing a lawyer. Some meet their attorney for the first time just minutes before they’re due in court. Many public defenders have no access to investigators. Most are severely overworked.

As for alleged sentencing disparities, here’s what an analysis by The Intercept found:

In 82 percent of the 719 January 6-related cases that have been resolved, and in which the defendants have either pleaded guilty or been convicted, judges have issued lighter sentences than federal prosecutors requested. … They imposed the same sentences sought by prosecutors in just 95 cases and harsher sentences in only 37.

The publication also found that judges appointed by Biden were actually more lenient with Jan. 6 defendants than judges appointed by Trump, and that Judge Tanya Chutkan, who is overseeing Trump’s overthrowing-the-election trial, and whom he has regularly accused of political bias, sentenced Capitol riot defendants to less than prosecutors’ recommendations in more than half the cases over which she presided.

As to the claim that “Antifa” and “BLM” protesters received more favorable treatment than Jan. 6ers, let’s again look at the facts. The federal government alone arrested about 6,000 protesters in the summer of 2020. Around 1,500 were charged. That’s five times more people than were arrested at the Capitol, and about 25% more who faced charges. Nationwide, around 14,000 George Floyd protesters were arrested within the first month of demonstrations. The total arrests of racial justice protesters arrested in cities like Los Angeles and New York alone—just in the first month—exceeded the total number of Jan. 6 arrests. An Associated Press analysis of 100 George Floyd protesters charged with federal crimes including rioting, arson, and conspiracy, found that they received an average sentence of 27 months, far longer than the median Jan. 6 sentence of 120 days.

The argument that the proportionately small percentage of protesters who destroyed property or injured others during the George Floyd demonstrations have been permitted to “roam free” just isn’t remotely true. Neither is the argument that Jan. 6ers were treated more harshly than racial justice protesters. They’ve been treated quite a bit better, despite the clear moral differences between protesting against racism and police brutality and storming the Capitol to overturn the results of a valid election.

The System Has Gone Way Easy on Trump

Trump has been treated far better and received more preferential treatment than just about anyone ever ensnared in the criminal justice system. He’s the only person in U.S. history to have his criminal case appear before a judge he appointed—and one he could promote to a higher court should he retake the White House. He’s also the only person in U.S. history to have his criminal case appear before the U.S. Supreme Court after having appointed a third of that court’s justices.

Consider how his classified documents case compares to similar cases against non-former presidents. The Justice Department became aware that Reality Winner had leaked a single classified document to a media outlet—a document she believed served an important public interest—in May 2017. She was arrested the following month. By August 2018, 16 months later, she had been sentenced to five years in prison. Trump was indicted for hoarding around 200 classified documents, lying about them, refusing to turn them over, and then obstructing the government’s attempts to recover them. Whatever his motivation was for all of this, it definitely wasn’t whistleblowing.

Trump illegally took the documents in January 2021. The first indication that the government became aware of them was in May of that year. The National Archives then gave Trump repeated warnings. Instead, he showed off and boasted about top secret documents to Mar-a-Lago visitors. The FBI didn’t open an investigation until March 2022. The search of Mar-a-Lago didn’t take place until the following August. Trump wasn’t indicted until June 2023. It has now been 37 months since the government became aware of Trump’s 200 documents, and it’s unlikely that his trial will happen any time soon.

Yes, the two cases aren’t exactly the same, most notably because Trump is a former president. But the idea that he is being vindictively persecuted is absurd. His power and status are affording him consideration no one accused of similar crimes would ever receive.

Trump has also somehow managed to spend the entirety of two civil trials and a criminal trial attacking and occasionally threatening judges, witnesses, and prosecutors without being jailed for it. At risk of stating the obvious, there aren’t many criminal defendants who can say they were found in contempt of court 10 times in a single trial without being jailed.

Getting Away with Felonies

Most people facing criminal charges also don’t have the most powerful public officials in the country holding press events outside their trials to denounce the judge and prosecutor. Most don’t have chairs of congressional committees threatening to subpoena the prosecutors who have charged them. And most don’t have sitting U.S. senators issuing vague threats against the judge who currently considering their sentence.

For most people, a record with 36 felony convictions would be a significant barrier to just about anything they undertake for the rest of their lives. But other than what appears to be a slight ding to his poll numbers, Trump’s convictions seem unlikely to hurt him at all.

In many states, for example, anyone convicted of a felony is prohibited from holding public office. But there are no such restrictions on running for the most powerful public office in the country.

People convicted of crimes related to dishonesty and fraud specifically (as Trump was) are also disqualified from most civil service positions in the federal government—and from winning contracts with many government agencies. But such convictions do not bar you from becoming president, the office that oversees all of those positions and contracts (and if, Trump gets his way, will have the power to fire huge swaths of the civil service for insufficient loyalty). Trump’s convictions and charges—especially the pending charges for mishandling classified documents—would also bar him from any position that requires a national security clearance. But you don’t need a security clearance to run for president. That’s probably a good thing, but in this case it means that while Trump’s convictions and pending charges would otherwise disqualify him from any job that require access to any classified information, they don’t bar him from the one job that gives him access to all of it.

Trump also won’t be disenfranchised, one of the more profound indignities we impose on people with felony convictions. In nine states, convicted felons lose their right to vote for life. In another 38, they can regain the right after serving their sentences and paying their fines. Trump resides in Florida, a state that has been historically punitive to voting rights for felons. But for out-of-state convictions, Florida tends to defer to the laws of the state where the conviction happened. And fortunately for Trump, New York restores the rights of felons to vote upon completion of their prison sentence. Florida also gives its governor the power to restore any individual resident’s right to vote. Ron DeSantis has made it clear that he’d use that power to ensure that Trump is never disenfranchised. DeSantis has not made that sort of promise to any other Florida resident. In fact, this is the same governor who staged cruel media spectacles in which he sent law enforcement officials to arrest and humiliate people who mistakenly voted under Florida’s confusing re-enfranchisement law.

People with felony convictions also often face difficulties traveling overseas. Currently, 38 countries bar entry to foreigners with a felony record. While it’s possible that a country or two might bar Trump from entering to make a political statement—perhaps to contrast his own behavior with his false and bigoted rhetoric about the criminality of immigrants—it seems unlikely that most countries would be willing to risk the consequences of angering the vengeful leader of a major political party of the most powerful country on earth. It’s doubtful that Trump will have much problem traveling overseas—as either a sitting president or a former one.

Trump Monetizes Criminality When Others Lose Their Shirt

Occupational licensing restrictions are an especially onerous barrier for people with a criminal record. In many states, a felony conviction can prevent you from becoming a barber or hairdresser, lawyer, teacher, radiology tech, athletic trainer, cosmetologist, banker, insurance salesman or adjuster, doctor, nurse, plumber, electrician, accountant, real estate agent, HVAC specialist, and numerous other professions. These restrictions limit the ability of people with criminal records from earning a living. People with criminal records substantially less money after their convictions, and their earning potential remains limited over the course of their lives. There are no such restrictions on becoming president, or leading a political party.

People with criminal convictions also typically struggle to pay court fines and fees, probation or parole fees, child support, and private debts accumulated while they were incarcerated. It can be difficult to find housing, and they’re far more likely to experience homelessness. Trump himself faces significant fines and fees. He owes $450 million to the state of New York for crimes committed by his company, and $90 million to E. Jean Carrol after a jury found him liable for defaming her after he sexually assaulted her. Trump also has a habit of not paying his creditors, though in his case it’s usually more a matter of not wanting to pay than the inability to do so. Still, unlike others with felony convictions, Trump will not end up homeless or destitute. It’s unlikely he’ll even need to alter his lavish lifestyle.

People with felony records can have difficulty accessing public assistance programs like food stamps, student loans, or government subsidized housing, sometimes due to specific policies, and sometimes due to the decisions of the people who administer these benefits. There are of course no such restrictions on the most lavish government-subsidized housing in the country—the White House. But more importantly, Trump himself has received hundreds of millions of dollars in government handouts over the years, mostly in the form of subsidies and tax breaks for his real estate projects. Fortunately for him, convicted felons and their businesses aren’t barred from most of these corporate welfare programs.

Trump won’t escape every consequence of a felony conviction. He will have to give up his guns. But he has never claimed to be a hunter or sport shooter, and with lifelong Secret Service protection, he doesn’t need to worry about personal security. It’s also possible that his New Jersey golf clubs could lose their liquor licenses, though his lawyers are likely to find a workaround.

Over the years, I’ve interviewed more people treated unfairly by the criminal justice system than I can count. They often say that the experience changed them. It made them more empathetic, less trustful of police and prosecutors, and more willing to entertain the notion that the system sometimes gets it wrong. Most understand that any system capable of the injustice inflicted on them has certainly done the same or worse to others. Powerful people who encounter the justice system can be particularly effective agents of change.

But that isn’t going to happen here. That’s partly because Trump has experienced only the most glancing of consequences from his criminal convictions. But it’s also because MAGA revels in victimhood. Conceding that the system is fundamentally unfair would merely make Trump one victim among many. The false narrative that courts and prosecutors are hellbent on targeting him and his supporters—while showing outrageous leniency toward scary drug dealers, rapists, and killers—only amplifies the outrage and victimhood.

MAGA’s beef with the system isn’t that justice has been weaponized, it’s that it has been weaponized against them. Their answer isn’t to insulate the system from politics, it’s to ratchet up the politicization, then aim it at their enemies.

One stark difference between Trump and everyone else with a felony record is that while most everyone else lives in perpetual anxiety about what to tell employers, neighbors, or potential paramours, Trump’s convictions were very public, so hiding them was never an option. But because of his power and position, the public nature of his charges has been far more of an asset than a burden. His convictions made him the ultimate victim. They let him cast himself as the mob boss he’s always aspired to be. And they motivated his supporters to give him their money, helping him overcome a significant fundraising gap with Joe Biden.

Most people struggle daily with the consequences of a felony conviction. Trump gets to wear his record like a garish cockade.

An earlier version of this essay was first published in The Watch, Radley Balko’s newsletter.