The OJ Defense

When OJ Simpson was tried for double-murder in 1995, he hired the most expensive attorneys money could buy. He needed them. A glove with the murder victims’ blood had been found on his property, his hair was found on a victim’s shirt, and he had seemingly confessed in a suicide-ish note read live on television during the Bronco chase. 

But by the time the trial was underway months later, the certainty of events seemed to slip away. This was no accident. With the deck stacked against them, OJ’s attorneys adopted a strategy of sowing confusion in the minds of the jury and public. They attacked and questioned every fact. They threw endless mud against the wall, not caring what stuck. The goal was to create such an overwhelming amount of information that the basic facts of the case would be forgotten.

The prosecutors claim there’s DNA evidence against our client. Well, what are your credentials? Can you explain the science of DNA? Can you be more specific? How many people in California have DNA like the sample you claim matches my client? How about in the world? Where is the list of these people? Are the police even trying to solve this case?

It became hard to see through the fog.

Confusion was the first part of their strategy. The second part was to accuse the accusers. The police were the real criminals. After the defense showed that the lead detective had a racist history, the rest of the case was brushed with it. How can you trust anything they say when the investigators are biased against our client? It was all a plot to frame OJ.

By the end of the trial, everything about the case was perceived through the defense’s narrative. The questions overwhelmed the facts. 

The OJ defense is what Donald Trump is using to fight the Mueller investigation. He’s creating confusion about every fact. He’s accusing the accusers. And it’s working. Polls show that 53% of the population believes the Mueller investigation is politically driven and 61% of Republicans say the investigation is “unfair.” Both numbers are growing.

Trump is muddying the water to distract from the facts of the case. He instigated a dubious and showboating FISA warrant release, a confusing report about the FBI’s investigation into Hillary Clinton (that proved the opposite of what Trump claimed), and he makes frequent inflammatory attacks and threats against the FBI agents and officials in charge of investigating him by name. 

These are crazy things to do. But they have a purpose. They create confusion in the minds of Americans about whose investigation this is and what it’s even about. This worked for OJ. It's working for Trump too.

The Clinton Precedent

All four major US intelligence agencies (CIA, FBI, NSA, and Director of National Intelligence) and now the Senate Intelligence Committee have stated that Russia created an influence campaign to manipulate the 2016 presidential election for Donald Trump and the Republicans. It wasn’t subtle either.

Russia’s hackers broke into the email accounts of Trump’s opponent and leaked their contents to the media shortly after Trump said on live television, “Russia, if you're listening, I hope you're able to find the 30,000 [Clinton] emails that are missing. I think you will probably be rewarded mightily by our press.” He said this just weeks after the Trump Tower meeting between his staff and representatives for Putin. 

The Mueller investigation knows a lot more than we do. But even if Mueller creates an airtight case against Trump, he only has indirect influence on what happens from there. It’s up to the House of Representatives — 435 elected Congresspeople — to determine the President’s guilt or innocence of possible impeachable offenses.

This has only happened twice before in American history. Most recently in 1998, when President Clinton was impeached for perjury and obstruction of justice for lying under oath about a woman he had sexually harassed. It was a party-line vote: 221 Congressman (almost all Republicans) voted in favor of impeachment and 212 (almost all Democrats) voted against.

Clinton’s case then went to the Senate where votes from two-thirds of members are required to remove the President from office. The votes against Clinton fell well short (45-55 and 50-50), and he was acquitted. Clinton served two more years as President after being impeached. A period during which he had the highest approval ratings of his presidency. He was seen as the victim of a political witch hunt. The public likes a survivor.

In the two instances in American history when the President was impeached, the Senate failed to remove them from office both times. The parties stuck by their man and the President kept being President.

2018 midterms

In November, America will elect the jury that will decide the fate of Donald Trump. All 435 Congressional seats are up for election.

Impeachment is meant to function as a kind of trial where facts are heard and justice is determined. But like a lot of things in America, that’s not how things work anymore. The outcome will be determined by which party gets to cast more votes in the decision.

If Mueller’s findings are damning and there are more Democrats than Republicans in the House, Trump will be impeached. If the same thing happens and there are more Republicans than Democrats, Trump might not be tried at all. If Mueller's findings aren't damning and there are more Democrats than Republicans, Trump still might get impeached. The gulf between those outcomes shows what a poisonous situation we find ourselves in.

Americans have a direct say about this in November. But I fear we’re not yet looking at the midterm elections in their full context. I don’t think we’re prepared for what’s really at stake.

Assume for a moment that the charges of Russian meddling are true. That means there are politicians now in office, from the President on down, who knowingly benefited from an illegal manipulation of the 2016 election. The same people who have used the OJ defense to distract the public from whatever happened.

Think about this election from the perspective of those politicians. If they lose, they'll get caught for what happened in 2016. Democrats will have the majority in the House, and they’ll be in charge of launching investigations and impeachment. But if these alleged Russia-supported politicians win again, they’ll keep power and be able to stop any investigations, just as they're doing now.

If you cheated to get elected before, you're 1000 times more incentivized to cheat again. These politicians didn’t face any consequences the first time because they won. The only way to make sure it stays that way is to keep winning. And the way to do that is by cheating more.

Based on these incentive structures, the coming midterms could be the most manipulated in American history. In the 60 or so races that will determine who controls the House of Representatives and the fate of Trump, there's potential for disinformation campaigns, hacked emails, voter tampering, and so on. As long as the dirty candidates win, no one will do anything about it. 

2020 and beyond

I'm probably naive, but my money is still on Democrats squeaking out a slight majority in the House and Republicans continuing to control the Senate. So what would happen in that scenario?

In 2019, the House will launch impeachment proceedings against the President. This will be a messy and lengthy process. Like the OJ case, the circus to end all circuses. Trump’s defense will depend on confusion, distraction, and destruction. Whatever the cost to the country. Ugly won’t even begin to describe it. This could even be when a war gets started.

By 2020, the Democrat-controlled House will vote to impeach Trump. But the Republican-led Senate — where it’s impossible to get a two-thirds vote on anything — will not remove him from office. Even if Trump is impeached for treasonous acts, he’s likely to stay President. And, like Bill Clinton, potentially a more popular one than before.

Which leads to the unthinkable: that in 2020, the President of the United States will be impeached and run for reelection in the same year. And in that scenario, I’m certain that Trump will win.

By the end of the OJ trial, the two murder victims were a distant memory. The case wasn’t about them anymore. It was about OJ’s legal dream team, a racist LAPD, a cast of characters, and the 24-hour media that sprang up from it. The theater to determine the truth overshadowed the truth itself: that two people had been brutally murdered and justice had not been served.

OJ got away with it. Trump very well may too.

P.S. #1

There’s an unlikely move worth playing out. 

Republicans could choose to be bigger than politics and turn on Trump. They could lead the impeachment charge against him, all the while knowing that Vice President Mike Pence — more right-wing than Trump — is waiting quietly in the wings like a Westworld host in sleep mode. Republicans save the country and they stay in power. Win-win. But getting there means giving Democrats a victory in their fight against Trump, something the tribalism of today will not allow. 

This reveals an overlooked missed opportunity from the past: that Democrats could have asked Clinton to step down because of his poor values so Al Gore could become President with a clean slate. This was unthinkable at the time, but isn’t that what our values would demand if the Clinton scandal happened today? 

P.S. #2

Thinking ahead to a (distant) post-Trump world, I try to imagine what a Democratic or oppositional platform might be. And I keep coming back to something similar to what Republicans are doing now: that emotions will lead them to treat the moment as a giant “Undo,” erasing as much of what Trump has done as possible. A mirror of the Republican strategy in the post-Obama years.

I don't think this is a good idea.

Let’s say that happens. We'll then spend the next thirty years with each side undoing what the other has done. Where does that lead? How long can a society afford to repeat that cycle? How far behind will the US fall?

As distasteful as it will feel, post-Trump leaders should look to build on and evolve what he has done rather than just take an eraser to it. Progress doesn’t only come from making something good and pure. It also comes from making things better. We’re going to need a lot of that in the future.