I’ve been stressing since May 2024, when a Manhattan jury convicted Donald Trump on 34 felony counts of falsifying business records, charges stemmed from payments made during his 2016 presidential campaign allegedly to conceal alleged affairs with adult film actress Stormy Daniels and model Karen McDougal, that a man is not a convicted felon in the state of New York until the jury verdict is affirmed and recorded by the judge at sentencing.
As of this morning, folks can finally repeat with confidence the propaganda line that Trump is a “convicted felon.” In the zombie case against Trump, on the basis of Judge Juan Merchan’s public signaling, an assistant district attorney stood to utter, “We must respect the office of the Presidency. So we request unconditional discharge, as the Court has indicated. This creates the status of convicted felon, as he appeals. The People recommend it.” Excellent choice of words; the ruling does indeed create a status, a manufactured label useful to those desperate to delegitimize the leader of the populist-nationalist movement that threatens Establishment power. Yesterday evening, a divided Supreme Court cleared the way for Trump’s criminal sentencing to go forward. What if Merchan had changed his mind and sentenced the President-elect to prison?
Trump was put through what sociologist Harold Garfinkel, in an article published in a 1956 issue of the American Journal of Sociology, called a “status degradation ceremony.” Since a civilized society can’t just call a man a convicted criminal and have him be so (albeit people do and think so), you have to put him through a formal ritual proceeding that makes him appear as one. It is validation via ceremonial. In the Manhattan hush money case case, by resurrecting expired misdemeanor charges that are very rarely pursued, and conjuring them into felonies by having juries (grand and trial) to image an underlying crime with no requirement that they all agree on the crime they’re imagining, a court has created a convicted felon without prescribing any punishment—no prison time, no community supervision, no fines, no nothing. And while avoiding a constitutional crisis by not sentencing a President-elect to prison, Judge Merchan gave Trump’s opponents a rhetorical weapon to wield against his agenda.
I have a point I am working towards, but before I get to it I have to say something about the substance of the case. Applying the principle of charity to steel man the prosecution’s argument, the theory of the case was that Trump orchestrated these payments to influence the election by suppressing potentially damaging stories. How that constitutes a felony is beyond me. It is common for prominent figures with deep pockets to give into extortionists in order to protect their reputations from false or damaging claims. This is why the prosecution team left it to the jury to rationalize the matter—as long as those rationalizations yielded a unanimous verdict of guilty beyond a reasonable doubt.
Getting to my point, the reflex on the left to work into every discussion of Trump the phrase “convicted felon” carries in it a self-delegitimizing force if made obvious. I have in the past noted that one of every three black man is a convicted felon—and many of these far worse that placating grifters—before wondering aloud whether a third of black men in America should be barred from public service, or whether their status as a convicted felon constantly thrown in their face. We might ask about the case of Nelson Mandela, a convicted felon who is widely seen as a great man who did great things. Should we go around constantly inserting into every conversation about Mandela the fact that he led the militant wing of an anti-government organization that was engaged in sabotage and violence?
In 1961, Nelson Mandela co-founded uMkhonto weSizwe (MK), the armed wing of the African National Congress (ANC), which carried out acts of sabotage against government infrastructure and other violent action. These acts were intended to undermine the apartheid regime and force it to negotiate. Those who make Mandela out to be a hero are quick to note that Mandela’s decision to engage in armed struggle came after years of discrimination, oppression, and systemic violence faced by the black population in South Africa, which left little room for peaceful resolution. He was a reluctant terrorist? No, not a terrorist at all—a freedom fighter leading the struggle against an unjust and oppressive system.
Of course, Mandela’s actions were seen by the government as terrorism. And so he was arrested in 1962, and convicted and sentenced to life imprisonment in 1964 for his role in planning sabotage and plotting to overthrow the government. After 27 years in prison, Mandela was released, ultimately becoming South Africa’s president in 1994. So a convicted felon served as the president of the country that made him a convicted felon.
If a domestic organization in the United States engaged in similar acts of sabotage against government infrastructure, the US government would almost certainly classify it as a terrorist group. This label would be supported by arguments about the illegitimacy of using violence to achieve political aims and the threat such actions pose to public safety and national stability. The broader public will likely view the group negatively, particularly if media and political narratives emphasized the disruption caused by its actions without adequately addressing the grievances driving the resistance.
The events of January 6, 2021, at the Capitol, provide an imperfect analogy. Imperfect because one must elevate a police riot to terrorist action by those so provoked, and make a sitting president the ringleader of the insurrection. Also imperfect because the Establishment was not able to pull off the charge of insurrection on the legal front. However, it was able to manufacture the impression of an insurrection by constantly repeating the label, and millions of gullible citizens made stupid by partisan ideology were predictably impressed. Where those waging lawfare were able to get a verdict and a conviction, they had to turn to a state court in a blue state (to be sure, orchestrated by the US Attorney General’s office), transmogrifying a trivial matter. And, though he did not move forward with the insurrection charges (or the Mar‑a‑Lago documents case), special prosecutor Jack Smith has a report that Attorney General Merrick Garland has said he will release to the public. The smear merchants are salivating.
Should moral calculus shift depending on context? If the US government were widely recognized as oppressive, systematically denying rights to a segment of its population, surely domestic and international observers might frame the resistance as justified. After all, wasn’t that how the left rationalized the color revolution during the summer and fall of 2020? What about the American Revolution or the Civil Rights Movement—don’t these demonstrate how perceptions of resistance evolve over time? Even figures who were once labeled as dangerous or subversive—for example, Martin Luther King Jr., who was closely monitored by the FBI’s COINTELPRO program—are now celebrated posthumously when their causes are vindicated.
What about the January Sixers? They’re convicted felons. Hundreds are sitting in prison as I write these words. How will public perceptions about them evolve over time? And what about Trump? Will the degradation ritual the Establishment has put him through be sufficient to make the label of “convicted felon” stick, to valorize, as we say in sociology, a master status?
freedom and reason 