How Joe Biden talks about the Trump criminal cases without talking about them

WASHINGTON — President Joe Biden’s directive to his campaign team is simple enough: Don’t talk about Donald Trump’s four criminal cases, people familiar with his campaign strategy said.

Trump is in enough difficulty without Biden appearing to meddle in his opponent’s legal troubles for political gain, the president’s advisers and allies said.

“Every day he [Trump] is in court, he’s reminding the American people that he’s dangerous, reckless and tried to overthrow an election,” said a person close to the Biden campaign, speaking on condition of anonymity to discuss the campaign’s viewpoint.

But with Trump’s first criminal trial expected to begin as early as April and the other cases pending, Biden is finding ways to spotlight his opponent’s predicament without delving into specific cases. He is focusing instead on the underlying behavior that gave rise to some of the criminal charges Trump faces while avoiding any mention of judges, prosecutors, courtrooms or potential penalties.

Trump’s status as both a defendant and the presumptive Republican nominee poses a distinct dilemma for Biden. Campaigns are built for one purpose — winning — and a proven way to win is to magnify an opponent’s vulnerabilities. If the verdict in the “hush money” case in Manhattan goes against him this spring, Trump could enter the home stretch of the campaign as a convicted felon — a vulnerability without parallel in American politics. (Trump has pleaded not guilty in the case, as he has in other criminal proceedings.)

By saying nothing, Biden isn’t necessarily helping his cause. At every turn, Trump is telling voters that he’s the target of unjust prosecutions meant to sink his candidacy. He continually names Biden and the Democrats as the puppeteers behind the charges.

Independent voters are a crucial constituency in the election. A recent Politico Magazine/Ipsos poll shows that a narrow majority of independents believe Trump is guilty in all four of the criminal cases he faces. If Trump’s accusations of election interference go unanswered, he could conceivably make headway with some of these voters by persuading them the charges are without merit.

For that reason, a posture of strict silence may not be viable for Biden.

Rather than address the issue point-blank, Biden is instead inviting voters to consider why Trump faces such legal peril. Biden’s first campaign speech of 2024 illustrates the message he is trying to deliver and the balance he’s looking to strike. At no point did he mention any of Trump’s indictments. But his description of Trump’s actions maps the language of the indictment that special counsel Jack Smith brought against Trump last August for allegedly attempting to overturn the results of the 2020 election.

Like Smith, Biden told the audience that Trump spread “lies” that he had won an election that he lost. Just as the indictment lays out, Biden described how Trump had failed in his attempts to reverse the result through recounts, audits and legal challenges. Much as the indictment laid blame on Trump for the attack on the Capitol on Jan. 6, 2021, which disrupted the peaceful transfer of power, Biden faulted Trump for summoning his supporters to Washington that day.

Biden has kept up this line of attack. He mentioned the Jan. 6 riot repeatedly in his State of the Union speech on March 7, arguing that Trump is trying to “bury the truth” about it.

Speaking at a campaign event in Dallas this week, Biden again broached the Jan. 6 attack on the Capitol in terms that echo Smith’s indictment.

“Trump finished his presidency by sending an insurrection mob to the Capitol,” Biden said. Smith’s indictment says that Trump and his co-conspirators “directed” his supporters to the Capitol to obstruct the certification of Biden’s victory.

At the same time, Biden is freely — and cheekily — invoking a civil case that strikes at the core of Trump’s identity as a rich, successful businessman. Trump has been unable to get a bond to cover the $464 million judgment against him and his co-defendants in a case brought by New York Attorney General Letitia James.

Biden repeated a joke at a campaign reception in Houston on Thursday that has been getting a laugh from his audience. A “defeated”-looking man came up to see him and complained that he’s being “crushed by debt” and is “completely wiped out,” Biden said.

“I had to say, ‘I’m sorry, Donald, I can’t help you,’” Biden quipped.

For the Biden campaign, the civil cases are entirely fair game, said Rep. Eric Swalwell, D-Calif., a Biden ally.

Brought by state authorities or private individuals, “the civil cases have nothing to do with what’s going on criminally,” the congressman said.

There is a split within Democratic circles about whether Biden should discuss Trump’s criminal cases at all. In an ordinary campaign, candidates typically look to exploit any weakness an opponent reveals. But Biden risks substantial blowback if, as head of the executive branch, he fosters the impression that he is manipulating the Justice Department’s investigation of Trump.

Biden “shouldn’t say anything that would lead anyone to think that he’s got his thumb on the scale with the independent Department of Justice,” Swalwell said.

“In politics, there’s a phrase, ‘Don’t throw someone who’s drowning a life jacket,’” said Jim Messina, who managed then-President Barack Obama’s successful 2012 re-election campaign. “The Biden campaign and the White House don’t need to address it.”

Other Democrats see it differently. Trump’s legal woes reflect the tumult that he would bring to the White House if he’s elected in November, and Biden should hit the point squarely, said Zac Petkanas, a Democratic strategist.

“Do you want a president who is under federal indictment, or do you want someone who is focused on lowering prescription drug costs for seniors?” Petkanas said. “That is going to be the choice, and nobody — the campaign or their allies — should shy away from speaking about it vocally.”

Whatever Biden chooses to say about Trump, his team and outside allies are confident that the court cases create a useful split screen. While Trump is sitting at a defendant’s table in court, Biden will be campaigning in swing states, reminding voters of how he worked to cap the price of insulin and reduce the jobless rate, the president’s allies say.

“You’re going to have President Biden very active doing events in all of the swing states,” said Maria Cardona, a Democratic strategist. “Implicit in that contrast is the split screen between President Biden doing what he’s doing and Donald Trump trying to fight all these criminal trials.”

“That’s going to work very well moving into the general election,” Cardona added.

Cable news networks are bound to give Trump’s legal trials blanket coverage, complicating Biden’s efforts to get his own message out. The huge cash advantage the Biden team enjoys may make the task easier.

Biden is opening dozens of new campaign offices and hiring hundreds of new staffers across battleground states, making it possible to reach more voters directly.

One Biden campaign official told NBC News that as Trump’s court appearances ramp up, the president’s team plans to counterprogram by relying more on local news coverage and social media engagement to amplify his campaign stops.