Share

Will Trump Redefine This Mark of Shame?


A felony, as Associate Justice Clarence Thomas once wrote in a 1994 Supreme Court opinion, is “as bad a word as you can give to man or thing.” When Donald J. Trump was found guilty of 34 felonies in May, by a jury in a Manhattan courtroom, the nation was confronted with a historical novelty: a felon who once held the highest office in the land. The question now is whether the label will actually tarnish Mr. Trump, as it has so many people over the centuries.

President Biden seems to be betting that it will. For weeks on the campaign trail, and more recently during the first presidential debate, he has called Mr. Trump a “convicted felon.” A Biden campaign ad called “Character Matters,” calls Mr. Trump “a convicted criminal, who’s only out for himself,” and says the felony convictions reveal “who he is.”

Felon is a word with 900 years of historical baggage, a remnant of the harsh punishments and routine discrimination that were the norm during the Middle Ages. But in a sense, its power derives from its elastic boundaries: Unlike specific crimes, which hinge on the defendant’s behavior, the felony category is defined only by its punishments.

“We don’t have a positive definition,” said Elise Wang, a historian who has traced the word’s origins back to medieval literature. “We only have a tautology.”

A felon, in other words, is simply anyone who has been found guilty of a felony, and a felony is any crime punishable by a year or more in prison — “the most serious crimes,” according to a Justice Department handbook.

Many felonies — like Mr. Trump’s and Hunter Biden’s as well — amount to lying on official paperwork. “This is one of the places where there’s a gap between the popular understanding of the term, and the law on the books,” said Alice Ristroph, a professor at Brooklyn Law School. “Ordinary understandings of ‘felony’ associate it with violent conduct, like murder. But in practice, almost anything that is criminal in any way can be charged as a felony.”

The label “felon” is now carried by an estimated 20 million Americans, or 8 percent of the adult population. For Black men, the share is far greater: Thirty-three percent, according to one study, have a felony conviction.

Many felons, despite having served out their sentences, have been permanently barred from receiving food stamps, living in public housing, holding some forms of employment, or the right to vote — what legal scholars call “collateral consequences.”

When Justice Thomas wrote that felony was “as bad a word as you can give to man or thing,” he was quoting from an older opinion, which in turn quoted an old history of English law. That text identified in the usage of “felon” a subtle undercurrent of praise. “Occasionally we may hear in it a note of admiration,” wrote the authors, “for fierceness may shade off into laudable courage.”

The electorate seems tuned into this ambiguity. After Mr. Trump was found guilty, initial polls pointed to a slight dip in support for him among independent voters, but the number of Republicans who said the convictions were a “good thing” for Mr. Trump’s campaign outnumbered dissenters by a ratio of 7 to 5.

Rahim Buford, who founded a nonprofit for the formerly incarcerated, and who himself was once convicted of a felony, told The New York Times that the former president might now understand “what it feels like” to be on the receiving end of the criminal justice system.

“He’s convicted, so now he’s in our community,” Mr. Buford said.

While Mr. Trump’s lawyers prepare to argue in court that his convictions should be thrown out in the wake of a Supreme Court ruling on presidential immunity, the former president has been embracing his new criminal status on his own terms, by framing himself as the victim of an unjust system. “This is bigger than me,” he said the day after the verdict. “The people understand it.”

This wasn’t the first time someone called Mr. Trump a bad name. It wasn’t the first time he was the target of a criminal investigation, nor the first time he was taken to court. But after the jury announced its verdict, he seemed to recognize that being a felon would be something different. It would be a new frontier of disgrace for him, and for the presidency.

While his lawyers make a last-ditch effort to fight the verdict in court, Mr. Trump is engaged in a second line of effort, experimenting with ways to turn his new status into a badge of honor. If his attempts to peel off the label don’t work, it seems he will try to flaunt it instead. The inversion of 34 felony convictions into a reason to vote for Mr. Trump, were it to succeed, would perhaps be his most audacious transgression of all.

The earliest uses of “felony” associate it with betrayal. A 12th-century manuscript of the French epic poem “The Song of Roland” refers to “felons, deceitful traitors.” A 14th-century religious text condemns “Judas, foul felon,” who “waited for Jesus with treason.”

Ms. Wang said that the fact that “felon” first appeared in literature before migrating over to law is important, because the felon, an especially wicked person, predates the idea of the felony as an especially heinous crime.

“The word is an epithet for ‘villain,’” she said. “What villainy means is that you’re excluded from society. Villains don’t get a happy storybook ending. We don’t let them come back. In the medieval context, that meant death or exile. At that time, most of the population lived and died in the same town they were born in. So if some rando were to show up and say, ‘I had to leave where I was before,’ you’re not going to treat that person very well. You’re going to keep them on the outskirts of society.”

At first, the felony crime was a kind of feudal insubordination — the offense of a serf or servant who had failed to carry out his prescribed duties to his lord. Around 1300, it began showing up in English criminal law as the equivalent of a botleas, a serious crime that could not simply be settled through an atonement payment or bot — and then as a crown offense, a crime that could entail capital punishment.

Almost as soon as the category was created, it began to grow. During the early period of common law in England, there were nine kinds of felonies: Murder, mayhem, manslaughter, rape, arson, robbery, burglary, larceny and sodomy. By 1765, according to William Blackstone, Parliament had specified 160 felonies. There is no definitive count of how many crimes are designated as felonies in the United States today, between state and federal law. One study puts the total number of kinds of federal crimes (misdemeanors included) at 5,199.

What might be called “felony creep” has been criticized across the political spectrum. The National Rifle Association has complained of “federal and state governments’ campaigns to criminalize everything,” noting that Martha Stewart’s four felony convictions related to insider stock trading now mean that she cannot legally own a gun. A claim by a defense lawyer that the average American unknowingly commits three felonies each day has been trumpeted by conservative critics of the executive branch’s regulatory agencies, which they call “the administrative state.”

Legal scholars have mounted a vigorous critique of the American felony system, arguing that it is essentially an extension of Jim Crow, one that serves to deprive millions of Black people of the right to vote.

“It’s about creating a permanent racial underclass,” said Ms. Wang. “History shows that some Americans are very comfortable with that. They might even prefer it.”

At a convention held in Alabama in 1901 to overhaul the state constitution, Jennifer Taylor of the Yale Law School pointed out, the presiding officer made an explicit linkage between felon disenfranchisement and the goal “to establish white supremacy” achieved “by law — not by force or fraud.”

To whatever extent that was the conscious purpose of felon disenfranchisement in the rest of the country, statistics suggest that it worked. In 2020, felony convictions kept more than than 5 million Americans from voting in the presidential election, one study found, with disenfranchisement affecting Black people at 3.7 times the rate of whites.

Twenty-five states currently bar at least some individuals with felony convictions from voting. Though Florida, where Mr. Trump lives, is among them, the fact that Mr. Trump was convicted in a New York State court means that he will probably be allowed to vote in November. If necessary, Gov. Ron DeSantis has promised to smooth the way for him.

Mr. Trump has insisted that his conviction reflects less on his own conduct than on the legitimacy of the entire legal order. If that argument sounds familiar, it should. He has used it many times before.

Mr. Trump’s former campaign manager (Paul Manafort) and his longtime adviser and friend (Roger Stone) are both convicted felons. For Mr. Trump, “felon” was just a word, at least when it came to his own associates: he gave all three men presidential pardons.

Mr. Trump has repeatedly invoked the infamous mob boss Al Capone, comparing his legal travails to Mr. Manafort’s, and later, to his own. Ignoring the fact that Capone spent eight years in federal prison, Mr. Trump has tried to argue that he and his allies received harsher treatment from the government in their own criminal cases than Capone did.

In Ms. Wang’s view, Mr. Trump’s Capone comparison could be another attempt to turn his convictions to his advantage by presenting himself as an outlaw, a pro-wrestling-style arch-villain.

“It adds fodder to his argument that he gets to be outside the system,” she said. “We do love villains. There’s something very attractive about them. But I don’t think the law should be in the business of talking about villains. That’s for stories. That’s for literature.”

Legal experts say the broader impact of felony convictions should be considered carefully by those seeking to capitalize on the shame that might attend to Mr. Trump’s new felon label.

“It may be strategically wise to pound on the message that ‘Trump is a felon, Trump is a felon,’” Ms. Ristroph said. “But to do so reinforces ideas about criminal law and the category of ‘felon’ that have been deployed in racialized ways, and have been devastating for other defendants.”

Ms. Ristroph advocates abolishing the felony category altogether. She likens the word to “bastard,” “idiot,” “imbecile” and “pauper,” four other derogatory categories that have been used in the past to transform people into outcasts. All have medieval origins. All managed to persist in American law well into the 20th century, before being largely set aside.

On Monday, Mr. Trump’s lawyers told the judge in his Manhattan trial that Mr. Trump’s social media posts, phone records and Oval Office conversations were inadmissible as evidence under the new Supreme Court ruling on presidential immunity, so his convictions ought to be thrown out. It was a state of affairs that might have made Al Capone jealous: a potential lifeline handed to him by six justices on the nation’s highest court, half of whom were his own appointees. For Mr. Trump, even “felon,” a label designed to leave a permanent mark, may prove to be negotiable.



Source link