Will Three Indictments Prove Too Much For Trump’s Campaign?

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.

nrakich (Nathaniel Rakich, senior elections analyst): Unless you’ve been living under a rock, you probably know by now that federal prosecutors indicted former President Donald Trump on Tuesday in connection with his actions to overturn the 2020 election. He has been charged with four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights (specifically, people’s right to have their vote counted). 

This is, of course, the third time this year that Trump has been indicted, and I’m curious about how voters will receive this indictment in light of the fact that it’s already happened twice before. Does this indictment compound his problems, or is it old hat at this point? But first, let’s analyze the specific charges in this case. How serious are they?

ameliatd (Amelia Thomson-DeVeaux, senior reporter): These are really serious charges that the prosecutor, special counsel Jack Smith, is framing as an attempt to undermine American democracy itself. Smith said Tuesday at a press conference after the charges were made public, “The attack on our nation’s Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting and certifying the results of the presidential election.”

gelliottmorris (G. Elliott Morris, editorial director of data analytics): Yeah, Amelia, I think the specific charges are bad — right? I know I wouldn’t want to be indicted for “conspiracy against rights” or “conspiracy to defraud the United States.” But moreover, given the amount of previously reported evidence on Trump’s efforts to overturn the 2020 election both on and before Jan. 6, it sure seems like a relatively strong case. (Obligatory caveat here: I’m no lawyer.) The indictment lists over 100 different pieces of evidence and shares them across the four counts against Trump. Honestly, more than anything, I’m really just shocked at the extent of the efforts by Trump and his co-conspirators to submit those alternative slates of electors to Congress, and reading the evidence in one document hits differently than it did when we were all watching these events play out over two or three months in real time.

nrakich: I agree, Elliott. It felt like we already knew most of the things in the indictment — for example, we knew about Trump’s efforts to pressure state officials to overturn the election (remember his phone call with Georgia Secretary of State Brad Raffensperger?), and we knew about the fake electors. But the indictment did a persuasive job weaving them together to form a narrative, and arguing that these weren’t just shocking news stories — they were potential crimes.

gelliottmorris: Right. So, given that, I wonder what Trump’s defense is going to be. Perhaps his lawyers will just argue that he was misled by all these co-conspirators and really did believe the charges? That he was totally ignorant of contrary information? (Though, again, full disclosure: I’m a data guy, not a lawyer, so I don’t know if that’s a proper defense. I somewhat doubt it.)

ameliatd: Well, it’s important to remember that an indictment is, by definition, one-sided and not reflective of what will be presented at trial, where Trump’s attorneys will be able to defend him. And I wouldn’t expect this to be a slam-dunk case for prosecutors. They face a couple of significant hurdles, one of which is that, for some of these charges, they need to prove Trump’s intent. And it can be difficult to establish definitively what was happening in another person’s mind.

Another argument that’s also being previewed by Trump’s lawyers is that Trump has a First Amendment right to say he won the election even if that’s not true.

geoffrey.skelley (Geoffrey Skelley, senior elections analyst): They could also attempt to claim that Trump really did think the election was fraudulently determined.

I’m already seeing conservative media outlets trying to argue that this sort of prosecution against Trump would have gotten former Vice President Al Gore in trouble during the contentious 2000 election that featured legal action that went all the way to the U.S. Supreme Court. 

gelliottmorris: I guess the difference with Gore is that he did not pursue alternative slates of electors after the vote was certified by the states? Maybe we should have another chat on hanging chads!

geoffrey.skelley: Yeah, among other things. Gore sued for recounts in a handful of Florida counties that could’ve produced gains for him. Then came weeks of wrangling over whether recounts could be conducted and, if recounted, whether those results would count. Eventually, the U.S. Supreme Court put a stop to the recounts and any chance that Gore might win Florida. But Gore’s actions didn’t involve attempts to make an end-run around the results in Florida — like allegedly putting together a group of fake electors or calling a secretary of state to change a state’s vote totals. Rather, they dealt with how to properly count disputed ballots there.

nrakich: You mentioned you don’t think this is a slam-dunk case, Amelia. How would you rate it in comparison to, say, the classified-documents case in terms of risk to Trump? That case does seem more open and shut (there are photos of classified documents in the bathroom at Mar-a-Lago!). But it sounds like, if proven, the charges in this case are more serious? Is that fair to say?

ameliatd: Well, do you mean serious legally or serious politically? I think they both carry a lot of risk for Trump. The facts in the classified documents case do seem pretty solid — but again, we don’t know what Trump’s lawyers’ counterarguments will be. A lot is going to happen between now and when the two federal cases go to trial, so it feels premature to say that prosecutors have a winning case. 

nrakich: I was thinking legally, but sure, let’s answer both!

gelliottmorris: I think there are strong dueling theories on the political impacts of this indictment.

On the one hand, Trump’s numbers have not moved much in the aftermath of the previous two indictments. In our (as of now unpublished) average of his favorability rating among Republicans, Trump was viewed favorably by 73 percent and unfavorably by 23 percent on the day of his first indictment in New York in March — a net rating of +50 percentage points. Two weeks after, his net favorability rating among Republicans had risen to +52 points. (That’s within the margin of error of our average.) And though his net favorability did sink after the June indictment in the classified-documents case, the slump was (a) not large and (b) returned him to his starting position in March!

On the other hand, maybe Americans view this indictment as more serious than the previous two. That could be because this case has to do with elections rather than executive power — which his lawyers may argue gives him the right to share classified documents (an untested theory, to be sure). I’ll be tracking the numbers to see.

nrakich: Yeah, Elliott, I wrote an article yesterday finding exactly that: A recent YouGov/Yahoo News poll asked whether each allegation against Trump so far was a serious crime, and the 2020-election-related stuff came out on top:

That said, a different poll from the Associated Press-NORC Center for Public Affairs Research asked whether Americans thought Trump actually did something illegal in each case, and the Jan. 6 case actually fell in between the classified documents and the hush-money payments to Stormy Daniels on that score.

geoffrey.skelley: To add another layer to what Elliott and Nathaniel laid out, there’s clearly a potential difference between how all this affects public opinion within the confines of the GOP presidential primary and how it could matter in a general election if Trump wins the Republican nomination.

I remain skeptical that even more indictments are going to dramatically alter Trump’s standing in the GOP primary. When it comes to this specific case, more than 60 percent of Republicans still don’t think President Biden legitimately won the 2020 election. In other words, Trump’s false claims have a serious hold on his party’s base, which makes it unlikely that Republicans will abandon Trump over this indictment. Now, maybe there’s a snowball effect, where the aggregate charges against Trump cause a significant share of GOP primary voters to say, “We need to go in a different direction.” But Trump gained support in our national primary average after the first indictment and only lost a little ground (if that) after the second. Why would the third be that much different?

nrakich: Yeah, I’m going to be watching closely to see if there is a snowball effect. I think that hypothesis is still very much on the table: Trump’s first indictment helped him. The second didn’t — and in fact may have hurt him a bit. Wouldn’t it be consistent with that pattern if the third one hurts him even more?

Your points about Republicans believing Trump’s lies about the 2020 election are well taken, and a strong counterargument. But I’ve been thinking a lot lately about this 2019 article from FiveThirtyEight contributor Lee Drutman: “If Republicans Ever Turn On Trump, It’ll Happen All At Once.” I think if Republicans start to abandon Trump, we won’t have seen it coming.

ameliatd: There’s also the timing of the trials to consider. The first trial — the one in Manhattan, involving hush-money payments to an adult-film actress to cover up an affair during the 2016 election — is slated for late March, when the GOP primary will be in full swing. And the classified-documents trial is scheduled for May. It’s possible that the GOP nomination might not be locked up by then, but there’s a distinct possibility that Trump will be the presumptive GOP nominee by the time that case (and this new one over Jan. 6) goes to trial.

That being said, there’s a reason why Trump wants to push the trials until after the 2024 election. Even if the outcomes are far from a done deal, with each successive indictment, Trump is running a higher and higher risk of being convicted of a felony before November 2024.

nrakich: Amelia raises the general election point, which I think is a totally different ballgame from the primary. I think a conviction would undeniably hurt Trump’s chances in November 2024 (though it would by no means guarantee Biden’s election). According to the aforementioned YouGov/Yahoo News poll, 62 percent of voters believe Trump should not be allowed to serve as president again if he’s convicted of a serious crime, and there is lots of other evidence demonstrating that scandals hurt candidates.

geoffrey.skelley: Polls suggest Republicans are least concerned about the New York case, and that’s the one most likely to be wrapped up first, right? So I’m not sure any convictions in the more serious cases would happen in time to affect the primary.

Of course, it’s also on the other Republican candidates to make the case to primary voters for why this matters and why they should be voters’ preferred alternative to a scandal-ridden Trump. Former Ambassador to the U.N. Nikki Haley has, for instance, said it is all a distraction and bad for the GOP. But then again, few of the Republican candidates are holding the substance of Trump’s alleged crimes against him in their critiques, probably because they worry about alienating Republican voters who aren’t necessarily that critical of Trump’s actions. Instead, they’re more likely to claim it’s a “distraction” or an example of weaponizing the Justice Department against political opponents. 

ameliatd: What about the argument that wall-to-wall media coverage of his trials actually helps Trump? The man does love free publicity.

nrakich: In the primary or general?

ameliatd: Either one!

nrakich: I think there’s virtually no chance it helps him in the general. Historically, Trump has fared better in the polls when he’s out of the news.

geoffrey.skelley: Ha, yes, in 2016 there was a bit of a pattern whereby the presidential candidate in the news more (former Secretary of State Hillary Clinton or Trump) tended to see a decline in their poll numbers. 

nrakich: I could see it in the primary, though. But Trump will also have to contend with the logistical problems that a trial poses: More time in the courtroom means less time for campaign rallies. If the GOP primary is still competitive by mid-March or whenever his first trial starts, he won’t be able to campaign very hard in key states. 

But also, let’s be real: I would be surprised if Trump doesn’t wrap up the primary by Super Tuesday (which is March 5 this cycle).

geoffrey.skelley: In light of these indictments, I do think there’s maybe a chance that some candidates try to hang around longer than they might have otherwise. Granted, they’ll need money to do that. But that could push things beyond Super Tuesday, at least technically.

gelliottmorris: For the general election, I think there’s reason to suspect that this “bad news is bad news” pattern may hold going forward. Repeating the poll average exercise from earlier, I looked at Trump’s favorability numbers among all Americans and noticed his average unfavorable rating is currently at one of its highest points (56.3 percent) since he left the White House in 2021. 

And there appears to have been a real, if modest, inflection point in his net unfavorable rating when he was indicted in the federal classified-documents case. What’s good for Trump in the primary may be bad for him in the general — and whether he ultimately becomes president may matter for his ability to stay out of jail.