10 min read

If no one can watch a trial, does it make a noise?

Team Biden hoped a trial would bring attention back to Trump. Now, they hope his rallies will. Maybe hope isn’t the best strategy.
If no one can watch a trial, does it make a noise?
Charles Lindbergh on the witness stand during the trial over his baby’s kidnapping, as seen in contraband newsreel footage. (Library of Congress)

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In a campaign with plenty of unexpected twists, here’s another dynamic you wouldn’t have guessed: One party’s presidential candidate is currently on trial for 34 felony charges, and the other party can’t wait for it to be over.

On its face, this is counterintuitive: you’d think the Biden campaign would want the proceedings keeping their opponent off the trail four days a week to stretch on as long as possible. But this inversion of expectations speaks to a problem Democrats are increasingly grappling with this cycle. With Joe Biden facing historically low opinions of his presidency and his economy, his campaign need the 2024 race — unlike most elections featuring an incumbent — to be a referendum on the challenger, not the incumbent. And that means they need voters paying a lot more attention to Donald Trump than to Biden.

At the beginning of Trump’s trial, it seemed like it might finally be the news event that would place Trump back on the main stage of American politics, fulfilling Biden’s wishes. “It remains plausible to think Mr. Biden’s standing might improve if the news were Trump, Trump, Trump all the time,” The New York Times’ Nate Cohn wrote in April, adding: “A trial might just be the kind of media spectacle that manages to put Mr. Trump, not Mr. Biden, front and center.”

Now that the trial is coming to an end, you only need to return to the pages of the Times to discover if those hopes bore fruit. “For all the news that the former president makes, the Biden team is struggling to make the campaign about him,” Jason Zengerle reported this weekend. One month and a historic trial later, the Biden campaign has made little headway in its goal of using Trump’s criminal charges to make him, not Biden, the focus of the 2024 election.

Looking back, there were two big signs that that objective was going to be harder to achieve than Biden anticipated. For one thing, the ex-president’s New York trial was always considered the ugly stepchild of Trump criminal cases. It may include titillating questions involving porn stars and hush money, but at the end of the day it is hard to get voters excited about the central topic of the case: falsifying business records. The novel legal theory undergirding the indictment is also difficult to follow. When put against Trump’s other charges — which revolve around alleged attempts to overturn an American election and to abscond with classified documents — phony invoices and ledger entries are hard to present as urgent.

Secondly, Americans have a long track record of being captivated by high-profile trials, from the Scopes Monkey and Lindbergh Baby trials of the 1920s and ’30s to the more recent O.J. Simpson and Johnny Depp-Amber Heard proceedings. We are a true crime-obsessed nation. But all those trials share a common trait that the Trump trial lacks: they were broadcast to the public.

That has looked different for each trial. The Scopes Monkey trial, the famed 1925 case about teaching evolution in Tennessee schools, was the first trial broadcast on national radio; WGN Radio rented AT&T cables that stretched all the way from Chicago to Tennessee, spending $1,000 a day to broadcast the proceedings to a fascinated public. The Simpson murder trial, meanwhile, fetched over 150 million viewers (more than a Super Bowl!) on television. The Depp-Heard defamation case was the so-called “trial by TikTok”; #JusticeForJohnnyDepp earned upwards of 8 billion views on the app.

During the Lindbergh Baby trial (which concerned the 1932 kidnapping of Charles Lindbergh’s infant son), the dominant medium was the newsreel, the short news updates that were played in movie theaters. The judge in the case allowed newsreel companies to film inside the courtroom — but only during recesses in the proceedings, to give viewers a taste of the scene. But the companies broke that agreement and secretly filmed during witness testimony; Americans thronged to theaters to watch the resulting footage.

Ironically, that 1930s break in protocol has been credited as the reason that American courtrooms are off-limits to cameras today. Judges bowed to public interest to make exceptions to that norm during the Simpson and Depp proceedings — but not for the Trump trial, contributing to the lack of public interest.

Compare those 20th-century media frenzies to the Trump trial experience, which has had as its signature medium... online live blogs, television text scrolls, and glowering courtroom sketches? It’s not quite the same as play-by-play footage, and reading the constant updates doesn’t lend itself to the same mass experience as huddling in front of the TV to watch. By all accounts, inside the courthouse, the Trump trial has been a prime media event, with scrums of reporters gathering to catch a glimpse at the proceedings. But, without the ability to broadcast it, that fervor has been difficult to translate outside the courtroom’s walls.

I have no doubt that if Stormy Daniels’ frequently lurid testimony was filmed, it would be a TikTok sensation, much like the Depp-Heard trial. But without usable footage, the Trump trial hasn’t had much of an online footprint, according to the popular TikTok journalist Vitus Spehar. “From a social media lens, from a peer citizen journalist news lens, it just doesn’t do well,” Spehar told NOTUS of the trial. “Your numbers don’t lie, right?”

Personally, even as a highly engaged news consumer, I have found it difficult to follow the Trump trial coverage, piecing together the developments from various live updates. According to polls, many less engaged news consumers are (understandably!) not putting in that level of effort.

Per a Yahoo/YouGov survey, more Americans are following the trial “not very closely” or “not closely at all” (52%) than those following it “very” or “somewhat” closely (48%). Just 16% fall into the “very closely” category. (By comparison, per Ipsos, 17% are “very familiar” with the Drake-Kendrick Lamar feud.) The exact Americans that Biden needs to tune into Trump news — politically disengaged voters who are sour on Biden and open to voting for Trump but still undecided — are also the ones who have been least likely to be following the Trump trial. 41% of Independents have followed the trial “very” or “somewhat” closely, per Yahoo/YouGov, compared to 60% of Democrats and 51% of Republicans.

Just 33% of 2022 non-voters, another (overlapping) problem group for Biden, have followed the trial, compared to 61% of those who participated in the midterms. 77% (!) of MSNBC viewers have followed the trial “somewhat” or “very” closely, but the same is true of only 36% of those who don’t watch cable news.

Of course, one possible ending to the 2024 election is that these disengaged, currently-Trump-leaning voters, many of whom didn’t vote in 2022, stay home again this November, allowing Biden to outperform his current polling. If there was one group of voters you would want to put money on not voting, it would certainly be disengaged voters. But, still, hope is not a strategy, and Biden’s campaign obviously can’t spend the next six months just sitting around, hoping for low voter turnout.

Instead, they will have to at least try to bring these voters to Biden’s side, and — the Biden theory goes — with such wide dissatisfaction over the economy, it might be easier reminding them why they didn’t like Trump in 2020 than trying to convince them that they do like Biden. (And, if reminding these voters they don’t like Trump leads them to stay home, well, better for Biden that these voters don’t vote than vote for Trump.) Hence, the need to shine the spotlight on the former president — and the Biden campaign’s unexpected excitement for the trial to be over, now that it’s clear that the trial has failed in delivering that spotlight.

I’m sure that Team Biden, ever the media critics, would like to blame that failure on journalists — and perhaps some criticism of the trial coverage is valid. Maybe the trial could have been covered more, or more seriously. The comedian Jon Stewart, for one, has said that the trial has faded into “televised wallpaper” because breathless, live updates on “the most banal of details” (Trump sighed! He shook his head!) has crowded out coverage of the important facts of the case. (Again, that is partially representative of the difficulty of coverving a historic event through live blogs and text scrolls.)

But, at the end of the day, it’s not the media’s job to elect Joe Biden president: it’s the Biden campaign’s. And unless something changes once a verdict is rendered — which is possible, but would certainly cut against the grain of previous Trump scandals — it’s hard to understood the Trump trial as anything but a missed opportunity on the part of Team Biden.

At the beginning of the trial, the president’s advisers were crowing about Trump’s banishment from the campaign trail: “Is not campaigning — as your opponent relentlessly campaigns in battleground states — and hiding in your basement a good way to assemble a winning coalition of voters?” the campaign asked sarcastically in a memo for reporters. “As Trump Stands Trial, Biden Sees Campaign Opening,” the Wall Street Journal reported in April.

Biden’s team clearly understands that they didn’t seize that opening — because they’ve now made a complete 180 in their messaging. Instead of boasting about Trump being off the trail, they are now salivating for his return. “A Biden official said the president’s team sees Trump’s post-trial return to the campaign trail as a positive development, believing it will provide a contrast for many voters who are not familiar with some of Trump’s recent remarks, including authoritarian rhetoric and pledges to close the southern U.S. border and increase oil drilling,” the Journal now reports this weekend.

With attention to Trump still lagging, the Biden campaign is gambling that his return-to-the-trail rallies will do what the trial did not and push attention away from the White House and towards Mar-a-Lago. (The task becomes even harder now that most of Trump’s most bombastic comments come on his little-followed app, Truth Social. In this context, the decision to banish Trump from Twitter — long advocated by Democrats — reverberates as one of the era’s most fateful.)

Again, though, this smacks of hope-as-strategy. Yes, the Trump trial did not push more eyeballs Trumpward — but that is partially because the Biden campaign barely tried to push them. Continuing their years-long anxiety over whether to elevate Trump’s personal scandals, Bidenworld made a conscious choice to ignore the trial and act as though the proceedings weren’t happening. As one data point, per Politico, out of more than 100 fundraising emails sent by the Biden’s campaign in the last month, only two mentioned the word “trial.”

Maybe that was the right call — famously, emphasizing Trump’s scandals was not a big help to Hillary Clinton in 2016 — but if your entire strategy is premised on focusing the campaign around Trump, at some point, you have to try to focus the campaign around Trump. And, if your opponent goes on trial and the polls don’t move an inch — if you can’t even spot where the trial took place on a polling graph — maybe changes need to be made and maybe you need to be louder in your efforts.

Source: FiveThirtyEight

One sign that the Biden campaign realizes they missed an opportunity came this morning, when they announced plans to hold a press conference outside the New York courthouse — only doing so for the first time on the trial’s final week of arguments. If Biden were on trial, it is not hard to imagine Trump staking out the courthouse every day, using his media savvy to do anything he could to bring attention to it. The Biden press conference will feature campaign surrogates, but notably not the president himself — the type of unorthodox event that Biden (perhaps rightly) seems to consider politically risky and beneath his office, but which could succeed in bringing eyeballs to the trial and reversing Biden’s image as a candidate without much fight in him. If democracy is truly in danger, as Biden is fond of saying, perhaps the time is ripe for some unorthodox maneuvers. (Or at least for some publicity. The same argument about proving his mettle could be made simply for Biden doing more media, and seizing opportunities for eyeballs like the Super Bowl interview he turned down in February. Another sign that Biden’s team belatedly understands its mistake is its sudden desire for debates, now that they need a new Big Event to bring attention to Trump.)

Biden’s personal hesitance to speak about the trial is just one way the proceedings have exposed a mismatch in tactics between the two contenders. While the Biden campaign has largely left the trial out of its email appeals, Trump’s fundraising requests are almost entirely about his prosecution — and, last month, Trump outraised Biden for the first time this cycle as a result. Then there was the revelation last week that if Trump is convicted, the Biden campaign is currently considering referring to Trump online as “Convicted Felon Donald Trump” (gasp!). Trump, on the other hand, regularly refers to Biden as a criminal, no conviction needed. (In his Memorial Day message, he added in that his opponents were “Human Scum,” for good measure.)

None of this means that Trump’s trial should suddenly become the only talking point of the Biden campaign. The answer to the age-old Democratic question — talk about the economy or talk about Trump — has always been both.

But the Biden campaign needs more attention to be devoted to Trump and they need fewer voters to view Biden as doddering and ineffectual. If the polls do end up being right, and Trump squeaks by with a narrow victory in November, the current trial may well seem like an important hinge point where Biden could have achieved both goals — and didn’t.

Now, of course, the polls could be wrong. And a criminal conviction (if one is returned) could do enough damage to Trump that no added action from Biden is needed. Biden clearly hopes that both of these possibilities will come true — and, to be clear, Trump’s polling advantage is slight enough that they would only need to come a little true for Biden to squeak out a victory.

Still, with each day, Biden has less time to force these changes. There are already some signs his campaign machine is finally revving up and growing louder. But if you’re Team Biden, wouldn’t you keep cranking up the noise until your strategy involved a minimal amount of hope and the maximum amount of action?


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