Trump's wealth buys leniency in America's 'rigged' justice system

Donald Trump was found guilty of 34 felony counts of falsifying business records for a "catch and kill" scheme to suppress embarrassing stories during the 2016 campaign, while the wealthy are rarely held accountable for financial crimes, and the poor are over-prosecuted for petty theft.

After a New York jury found Donald Trump guilty of 34 felony counts of falsifying business records, the former president continued to rail over what he has long claimed is a “rigged” justice system targeting him.

He may be right that the system is rigged — but it is actually rigged in favor of wealthy people like him. 

The jury found that Trump spent $130,000 on a “catch and kill” scheme to suppress embarrassing stories during the 2016 campaign about alleged affairs, including one with an adult film actress, and then falsified business records to conceal the payments.

Trump claims that even if what he did was technically illegal, no reasonable prosecutor would have pursued charges against him. He is right on one level: Prosecutors rarely hold the wealthy accountable, even when they commit serious financial crimes. But they regularly prosecute the poor for petty theft.

In fact, the prosecution of white-collar offenses is at its lowest level since tracking began during the Reagan administration. In fiscal 2022, there were only 4,180 prosecutions nationwide by the federal government for white-collar crime, which, on average, costs the country five times more than property theft. That same year, there were more than 10 times as many prosecutions (exactly 49,931) for theft in Manhattan alone. 

Trump was convicted of 34 counts of falsifying business records, a low-level, nonviolent felony. Although each count carries a maximum penalty of one-and-a-third to four years in prison, it is unlikely the judge would sentence him to anything other than probation.   

Meanwhile, in New York City, misdemeanors such as selling knock-off Coach bags without a license could lead to a two-year sentence. Hopping a subway turnstile could land you behind bars for up to a year.

What’s more, if you commit a “fraudulent act” and receive any form of “public assistance,” you can be charged with welfare fraud, a misdemeanor. If the value of the public benefits you receive is over $1,000, it becomes a Class E felony the same kind Trump was found guilty of. If the value of the public benefits you receive is over $3,000, it becomes a more serious Class D felony. 

So in New York, taking $3,000 in illicit public assistance is a more serious crime than falsifying a business record to cover up a $130,000 payment to win an election. 

This dichotomy between the rich and the poor in our criminal courts comes into even sharper focus when we consider the amount of money Trump has spent on his defense: $76.7 million over the last two years. He sat in a courtroom, flanked by three lawyers who were focused solely on his case. 

Meanwhile, in the same Manhattan courthouse where I worked for years as a public defender, my former colleagues, overworked and underpaid, represent most of the people who are accused of crimes.

While Trump draws upon millions of dollars in campaign contributions to fund his defense, most Americans who are charged with a crime must rely on a public defender. The starting salary for the public defenders Trump will pass in the hallways on the way to his sentencing is just over $74,000. The money spent by Trump on legal fees over the last two years could have paid the starting salaries of over 1,000 public defenders representing over 100,000 people.  

The idea that Trump was somehow denied due process is comical, when you consider what passes for due process for those unable to afford a lawyer. They get one lawyer assigned to their cases, who also represents 100 other clients and gets a salary that barely pays the bills.

Trump got all the due process that money can buy, but a jury still found him guilty beyond a reasonable doubt. That tells you just how strong the evidence against him was. 

Trump conflates the privilege of being wealthy with immunity from prosecution. It’s not surprising why: Trump has been sued over 60 times by people who claim he refused to pay them for their work, but not a single prosecutor saw fit to charge him with theft or fraud. 

In a criminal legal system that strives for equal justice under the law, both the wealthy and the destitute should be held accountable. One way to do that would be to get rid of the system that we have now where fines are fixed and instead make the amount relative to the wealth of the defendant. 

Whether it is a fine for speeding or criminal contempt, the fine should be an actual deterrent. When 44 percent of Americans don’t have $1,000 in the bank, using fixed fines results in a system where the wealthy can buy their way out of trouble.  

Another way to ensure equal justice under the law would be to devote more prosecutorial resources toward financial crimes committed by the wealthy, like tax evasion. The poor person who gets government benefits they are not entitled to and the wealthy person who refuses to pay the government what they owe in taxes are both committing theft, but the poor person is far more likely to be prosecuted. 

The United States Treasury Department estimates that the “tax gap” — the difference between taxes owed and taxes collected — totals around $600 billion a year and that the wealthiest 1 percent fail to pay $160 billion, which means the wealthiest 1 percent are responsible for more than 25 percent of the tax gap. 

When a person charged with a crime is too poor to hire an attorney, which is the case for 82 percent of people charged with felonies, the state should make sure that the lawyer assigned to their case has the time and resources to provide an adequate defense. Trump got the best defense money can buy but public defenders working in the same courthouse where he was tried sometimes have to get a second job to make ends meet.  

Trump enjoyed all the privileges of the wealthy when brought to trial: the ability to remain out of custody because he can pay bail, the ability to hire the best lawyers available and even the ability to violate orders of the court, because $1,000 fines for contempt are meaningless to him. 

Wealth has allowed him — and those like him — to remain unaccountable. People who live in penthouses rarely face justice inside a courthouse. That isn’t equal justice under the law. 

John Gross is a clinical associate professor of law at the University of Wisconsin Law School and director of the Public Defender Project.