Frankly, I am worried. I am worried about the 91 criminal charges against Donald Trump and worried he will not be brought to trial on any of them.
I respect our legal system and judges and juries. They usually get it right— until they don’t. They can fall victim to litigants like the 45th president, who have learned how to play the system.
Trump faces felony counts in four jurisdictions, and he may wind up getting away with it all. Most people faced with such formidable charges would consider running away, throwing themselves at the mercy of the court, or becoming government witnesses. Not Trump. He shows no remorse, only arrogance.
Trump’s principal defense strategy is delay. Delay is always the tool of choice in any seasoned criminal lawyer’s bag. As the saying goes, no trial, no conviction.
In Trump’s case, delay is a get-out-of-jail-free card. The strategy is simple and readily palpable. Delay the criminal cases against him until after the election. If he gets elected, all the cases will be discontinued. He will see to that on Day One when he says he will be a dictator.
Even affluent litigants charged with crimes worry about legal fees at some point. But Trump does not pay his lawyers with personal funds. Since he claims that these are all “political” prosecutions,” the lawyers are paid with campaign funds, which continue to roll in. The legal fees have been staggering. Already, Trump has spent $37 million on more than 60 law firms and individual attorneys since January 2022, Federal Election Commission records show.
Let’s take the temperature of how he is doing in the most critical case, the one arising out of the events of January 6. There, he faces a March 4 trial date. Although “Super Tuesday” is the next day, Trump could be tried and convicted long before the general election. As a panel of the D.C. Circuit put it: “In this case, the general election is almost a year away, and will long postdate the trial in this case.” Lots of luck.
Trump has moved to dismiss the case on grounds of presidential immunity. He claims that everything he did in office is immune from criminal prosecution. His shibboleth: “l’état c’est moi,”—at least it was formerly moi.
The oft-indicted mogul also moved to dismiss on the grounds of double jeopardy, arguing that he was acquitted of charges arising out of January 6 in his second impeachment trial, he cannot be tried again. But in D.C., he faces different charges before a separate tribunal, and double jeopardy doesn’t apply. Frivolous arguments have never stopped Trump before.
Judge Tanya Chutkan denied Trump’s motion in a 48-page opinion that law professors have described as “bulletproof,” “meticulously crafted with the Supreme Court in mind.” A president has never been said to have sweeping immunity from criminal prosecution for everything he does in office.
If he sits in the Oval Office and plots a crime, one would think he is not immune because he has the same job title as John Adams and Warren Harding. To hold otherwise would be to declare the president above the law. The violations of his oath are myriad: Plotting to overthrow our democracy, hindering the peaceful transfer of power, promoting phony electors, and pressuring the vice president to do things he is not authorized to do in counting the vote of the presidential electors are not even in the “outer perimeter” of presidential duties.
Usually, pre-trial motions in a criminal case are not appealable before final judgment. Still, denying a motion to dismiss on grounds of immunity or double jeopardy is immediately appealable.
Appeals take time. And here’s the rub. By simply filing a paper in court called a notice of appeal, the lower court loses its jurisdiction as to all matters involved in the appeal. So, the trial date is automatically stayed until the appellate court acts. Stay rhymes with delay. If Chutkan is affirmed, Trump may take a further appeal from the decision of the three-judge panel of the D.C. Circuit Court of Appeals to the full bench of 15 judges. Then, there is a petition for certiorari to the United States Supreme Court, which may not be decided until the term begins in October 2024. So, more stay and delay, but still no trial before the election.
A seasoned prosecutor, Jack Smith realizes the clock puts him in a jam. His focus must be time management. So he threw a “Hail Mary” pass asking the Supreme Court to consider a petition for cert in advance of judgment, a procedure leapfrogging the D.C. Circuit that has only been rarely used—49 times since 1925 and 19 times in the past five years. It was used notably regarding Richard M. Nixon’s White House tapes. Quite remarkably, and for whatever reason, Smith’s petition did not say anything about the elephant in the room—the 2024 election, which could render any trial moot.
The petition would save months of wheel-spinning in the intermediate appellate court if granted. It would take four votes to grant the petition, but I am not confident the votes are there. Justices Clarence Thomas (if he fails to recuse himself) and Samuel Alito would deny the petition, doubtless because they think of Trump as a victim of a political prosecution. The four other conservatives (Justices John Roberts, Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh) might vote to deny because they believe the Court should avoid the political thicket. Dissenting in Bush v Gore, Justice Stephen Breyer said: “Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election.”
As Chief Justice Roberts has stressed, when the Court becomes supremely partisan, it undermines public acceptance of its decisions. This was the mistake they made in the 5-4 decision in Bush v. Gore, which, in many eyes, only undermined the court’s legitimacy. The Court’s approval rating currently stands at 41 percent–a record low.
But it is no simple matter to predict where this Supreme Court will go. While its majority has been knee-jerk right-wing radical on issues such as abortion, the environment, gun safety, and religious freedom, it was not knee-jerk for Trump in 2020 on his bogus claims of election fraud and his Big Lie that he had won the election.
But this is no ordinary dispute. This is not Bush v. Gore, in which now-Justices Barrett, Roberts, and Kavanaugh participated as lawyers on the Bush side. There, the Bush lawyers invited the Court to put its thumb on the scale to favor the Republicans in a national election. But sauce for the goose isn’t always sauce for the gander. Here, the issue is not the outcome of an election but whether the rule of law will be vindicated or whether we are to be governed by violent mobs and attempted coups.
The lawyers representing Trump have spent most of their time avoiding the merits of the charges and asking for time.
Lest you thought we are a government of laws, not men,
Trump defends himself by attacking the people who seek to bring him to justice. Special Counsel Smith is “deranged.” So is his wife. New York County District Attorney Alvin Bragg is a “racist.” So is New York Attorney General Letitia James.
The infamous Roy Cohn, fixer and Trump mentor used to say cynically, “Fuck the law, who’s the judge?” The judges in Trump’s cases don’t escape rubbishing either. Federal Judge Tanya Chutkan “obviously wants me behind bars.” State court Judge Arthur Engoron is “unhinged.” On Monday, Engoron firmly denied Trump’s attempt to toss the state attorney general’s civil fraud case. The New York trial judge overseeing Donald Trump’s civil fraud trial wrote a scathing denial of the former president’s latest attempt to toss the state attorney general’s case against him—a bad sign for Trump as the trial winds down.
Only Florida Federal Judge Aileen Cannon, whose pro-Trump bias spills from her decisions, is “a very highly respected judge, a very smart judge, and a very strong judge” who “loves our country.” There has been speculation that, if Trump is re-elected, the inexperienced Cannon will be his first nominee for the Supreme Court.
Justice Thomas was described as “key” to Trump’s plan to delay Congress’ certification of President Joe Biden’s victory after the 2020 election. “We want to frame things so that Thomas could be the one to issue” a temporary order putting Georgia’s results in doubt, Trump attorney Kenneth Chesebro wrote in a December 31, 2020, email, adding that a favorable order from Thomas was their “only chance” to prevent Congress from counting electoral votes for Biden from Georgia. Disclosure of the email led to calls for Chesebro’s disbarment.
The powerful know how to “get away with murder.” Trump famously bragged that he “could shoot someone on Fifth Avenue” and get away with it. Wealthy individuals such as Doris Duke and O.J. Simpson, to name a few, all killed people with criminal impunity.
If the Supreme Court denies cert before judgment, it will signal that we have one law for Trump and one for everyone else.
Then there is the state court case in Georgia, prosecuted by the redoubtable Fani Willis, where a trial date has not even been set. There, Trump has just moved to dismiss the case on First Amendment grounds. Since this is a dispositive motion, he may successfully stay all proceedings until the Georgia Supreme Court determines the issue. More delay, more briefing schedules, and more time. No trial before the election.
Of course, Trump must be nominated and win the election to get off scot-free. Still, I am worried.
