Ten days ago, our 33-year-old son, Tommy Alter, called me with a few edits on the galleys of my forthcoming book, American Reckoning: Inside Trump’s Trial—And My Own, which I’m rushing out before the election. This was only a few days before the book was ripped out of my hands and sent to the printer.
When Tommy called, I had just completed some late reporting on how the prosecution and defense in the Trump hush money trial assessed the outcome and the coming appeals. This helps enrich the book’s trial narrative, which I’ve tightened and toughened (with new anti-Trump material) from what devoted Monthly readers may have seen here in April and May.
And I added some new stuff about Nancy Pelosi’s heroic efforts to force President Joe Biden off the ticket. “She’ll cut your head off, and you won’t even know it,” one of her friends told me. (The book, available by pre-order, also includes a mini-memoir of my journalistic career, some things I’ve learned from interviewing nine American presidents and a cri de coeur for democracy and against all things Trump).
Tommy brought up the subject of “Black Swans,” named for the rare birds a Dutch explorer discovered in Australia in 1697. More than 300 years later, in 2007, Nassim Nicholas Taleb wrote an influential book called The Black Swan: The Impact of the Highly Improbable. Taleb argued that Black Swan events (e.g., 9/11 or the development of Google) share three criteria: they are extremely rare, extremely impactful, and—despite being outliers—explainable and even predictable in hindsight.
Tommy’s point was that the only felony conviction of an American president and the latest-ever withdrawal from a campaign of any president will both be seen as Black Swans if Kamala Harris goes on to win the election. These events weren’t just improbable and impactful; they were also, in retrospect, predictable. Why shouldn’t a criminal president be held to account and a frail president be forced to stand down?
Of course, if Trump wins, his criminal conviction in New York will be seen as just a speed bump that helped his MAGA base turn out in November. And Biden standing down in favor of Harris will be regarded as a good try that fell just short. In that depressing scenario, the Black Swan event would be the Trump assassination attempt.
While some Democrats are now unreasonably Pollyannish—Taleb points out that people routinely think they know more about Black Swans than they do—let’s assume for the sake of argument that Harris wins. In that case, historians studying the tumultuous events of 2024 may view this as Black Swan Summer.
The two Black Swans nuzzled each other.
Through June and most of July, it seemed as if Trump’s criminal conviction would fade away. During his disastrous June 27 debate performance, Biden made reference to Trump “having sex with a porn star,” but that was it. He did nothing to drive home the point that he was running against a convicted felon.
Harris, by contrast, is using her record as a prosecutor to bring Trump’s felony conviction front and center. She mentions the 34 guilty counts in every stump speech before shushing the “Lock him up!” chants from Democrats echoing what Republican delegates chanted eight years ago about Hillary Clinton. This illuminates a critical, if now obvious, difference between the parties regarding the rule of law. Michael Flynn and others leading the 2016 “Lock her up!” chants were advocating extra-legal and lawless behavior; Hillary had not been indicted, much less convicted. Trump, on the other hand, has been convicted and is awaiting sentencing, though both Harris and Tim Walz are being careful not to be seen endorsing any particular punishment.
They recognize that Judge Juan Merchan will decide whether to lock Trump up. He has set September 18 for sentencing. First, he has to rule on other legal matters.
Trump’s defense lawyers missed the deadline for filing post-trial motions, then—after Harris became the nominee—sought the judge’s recusal because his daughter works at a political consulting firm that backs Harris. Really? That’s the best they could do? Citing precedent, Merchan ruled on Monday that the defense motion was “nothing more than a repetition of stale and unsubstantiated claims.”
Of course, Trump never gives up. To give you a sense of his lame argument for Merchan’s recusal, consider this August 14 letter from his lead attorney, Todd Blanche, to the judge:
In yesterday’s ruling, the Court did not address the significance of the 2019 conversations with Your Honor’s daughter criticizing President Trump’s use of Twitter, with the new fact being that existing Tweets from President Trump at the time of that conversation are squarely at issue in the pending Presidential immunity motion. Moreover, since the most recent recusal motion, as Kamala Harris did previously, Tim Wall [sic] wrongly referred to this case in a public speech as the Democrat Party’s nominee for Vice President. In the same timeframe, Michael Nellis, a business partner of Your Honor’s daughter at Authentic Campaigns (and Authentic’s founder), posted on social media about, inter alia, making maximum donations to the Harris campaign and using his clout with that campaign to get Walz to “talk on our White Dudes for Harris call last week.”
Tweets? Walz giving a speech? “White Dudes” in the same firm as his daughter? Talk about attenuated. Unfortunately, not all of the defense’s arguments about immunity are quite so ridiculous. On September 18, Merchan will rule on how the landmark July 1 Supreme Court decision affects the hush money case, particularly the critical testimony of Hope Hicks, who, as White House communications director, had an important conversation with President Trump in 2018 on the day the Stormy Daniels story broke. On the witness stand in early May, Hicks recalled being skeptical of Trump’s implausible claim that Michael Cohen paid hush money to Daniels without Trump’s knowledge “out of the kindness of his heart.”
Trump’s defense lawyers are arguing that Chief Justice John Roberts’ dangerous majority opinion, which draws a labored distinction between official and unofficial presidential duties, requires that the whole case be thrown out. Their reasoning is that a president’s conversations with his communications director are official duties, by this new standard, and thus he deserves “presumptive immunity” from any prosecution based upon them.
The Manhattan District Attorney’s office is arguing that while Hicks’s testimony was incriminating, it was hardly the totality of a case that, as prosecutor Josh Steinglass said in his closing argument, contained “mountains of evidence.” Merchan is expected to side with the prosecution, a ruling that will, of course, be appealed to the Supreme Court.
Even if Trump wins his appeals, his conviction will likely not be thrown out anytime soon, leaving him a convicted felon through the election and beyond. While the odds of his winning his immunity claim remain uncertain (it’s virgin legal territory), he may do better under two recent Supreme Court decisions requiring unanimous jury verdicts.
Contrary to some accounts in rightwing publications, Merchan did not instruct the jurors that they need not be unanimous in their verdict, so reversal on those grounds won’t happen. He clearly said that unanimity was required for conviction on each of the 34 counts of falsifying business records contained in the indictment. However, he also instructed that when deciding on elements of the case—the three “unlawful means” Trump used to violate New York State law on interfering in elections—unanimous jury verdicts were not required.
Many state and federal criminal statutes contain similar vague language about “unlawful means”—elements not included in the indictment. It is possible—though not likely—that the high court will rule that the Constitution requires that jury verdicts on all elements must also be unanimous. But this year’s decisions requiring unanimous verdicts on the counts in an indictment were, in both cases, supported by at least some liberal justices. They will not look kindly on throwing out Trump’s conviction on these grounds. Of course, given what we’ve seen in SCOTUS in recent years, such a decision cannot be ruled out.
In the meantime, Judge Merchan has five basic options—or some combination thereof —at the sentencing hearing on September 18:
Postpone sentencing. Merchan may figure that sentencing Trump to jail just before an election (even though no sentence will be served for years) is too inflammatory, so he could kick the can down the road a few months.
Jail time. When Merchan held Trump in contempt of court in May, he said that jailing a former president was too much of a burden on courthouse personnel. So, he settled for modest fines. But if the Manhattan Criminal Courthouse was not set up for a prisoner like Trump, plenty of minimum security facilities in New York State would know precisely how to house him. More likely, Merchan would sentence him to, say, 18 months in jail but suspend the sentence while adding another punishment, as judges often do in cases with extenuating circumstances.
Community service. Given the difficulty of securing outdoor venues—as shown by the assassination attempt—there is no chance Trump would be sentenced to pick up trash, as I recommended. Even indoor community service in, say, a soup kitchen would be logistically difficult, with hungry people required to go through metal detectors before they can eat.
Home confinement. If Trump wins, courts will make sure he is never confined to the White House. If Harris wins, we could see him sporting an ankle bracelet. There would be some justice in that.
Stiff fine. During the trial, Merchan was clearly frustrated that, by law, he could only fine Trump $10,000 for each contempt citation. At sentencing, he is under no such limitation. The fine should be higher than in Trump’s civil cases, so $100 million sounds about right.
Now for the second Black Swan event—Biden’s withdrawal. Tommy argues that its origins can be dated to May 15. I asked: Why that day? He explained that this was when Trump agreed to Biden’s request that they debate in June—a grievous, maybe fatal, tactical mistake by the Trump campaign. Biden’s team hoped to reset the campaign with a bold mid-year debate. That miscalculation doomed his candidacy. If Trump loses, he will have doomed his own campaign by not waiting until the fall to debate, at which point it would have been too late for the Democrats to replace Biden with a different nominee after Trump clobbered him.
As I head to Chicago for the Democratic National Convention, I’m looking forward to glimpsing in person the third Black Swan of the summer of 2024—the graceful and flawless appearance on the pond of Kamala Harris, whose popularity and superior political skills were predicted by no one.
Nassim Nicholas Taleb studies Wall Street, which is obsessed with identifying Black Swans. At the beginning of the year, an outfit called BCA Research listed potential 2024 Black Swans: “A nuclear face-off between the U.S. and Russia, a Chinese recession, military skirmishes in Asia, a missile strike on the Strait of Gibraltar—and a woman as U.S. president.”
Let’s hope for just the last one, the fourth of this astonishing year.
