Trump Will Face Justice for Assaulting the Rule of Law Only if He Loses in November

Despite the Supreme Court’s immunity ruling, Special Counsel Jack Smith has constructed a compelling case against his efforts to steal the election

(Potashev Aleksandr, Shutterstock)

Faith in the rule of law is a uniquely American characteristic. Our belief in the exceptional nature of the nation rests on the fundamental foundation that here, in the United States, the law is supreme. The belief is so deeply entrenched that it is sometimes said that the rule of law is America’s secular religion.

The Donald Trump experience tests our secular faith almost beyond the breaking point. He stands criminally convicted in New York for making hush-money payments to a porn star to affect the outcome of the last election but won’t be sentenced until after the election (if even then). His other criminal trials in Georgia (to thwart the certification of the state election), Florida (for illegally whisking away highly classified documents to Mar-a-Lago), and Washington D.C. (for attempting to prevent the peaceful transfer of power) have been interminably delayed. Trump has managed to convert the idea of due process—the crown jewel of the rule of law—into a weapon of destruction, laying waste to the concept of justice that undergirds our legal system's structures.

And yet there is hope. The rule of law can’t save us from Trump; for that, we must rely on the elections. But we may still hope that one of Trump’s cases will eventually provide the country with a just (though not a prompt) resolution.

Trump’s Lucky Breaks

That hope had nearly been extinguished earlier this summer. The prospect of a Trump election victory over President Biden meant that it was virtually certain Trump would use his status as president to seek further, unlimited delay in the two pending state prosecutions in New York and Georgia. A newly elected Trump would argue (with some persuasive force) that state criminal proceedings would interfere with the federal government’s operation and (with less validity) that the civil cases against him should be paused while he is president.

More directly, we can be confident that, if elected, Trump will either order his attorney general to dismiss the charges against him and fire the special counsel or, alternatively, grant himself a pardon from all federal criminal prosecutions, effectively ending those cases.

Now, however, there is a distinct possibility that Trump may lose the election. And to be clear, a defeat at the polls is a precondition to the eventual satisfaction of justice’s demands. Indeed, as is apparent, Trump is running for reelection at least in part to avoid criminal conviction. Leaving aside the outlier possibility that President Kamala Harris might choose to pardon Trump, an electoral defeat for Trump seems likely to lead, inexorably, to the wheels of justice slowly grinding forward.

But even so, the prospects for satisfying the rule of law will face significant obstacles. The Mar-a-Lago case was supposed to be the easiest to prove and the most streamlined one ready to come to trial quickly. But the case has ground to a halt. The special counsel was unlucky in his draw of a Trump-appointed judge, and that judge has, in turn, made a hash of the case. Her most recent opinion dismissing the indictment because, ostensibly, the special counsel was illegally appointed by the attorney general instead of being statutorily authorized, is almost ludicrous in its reasoning—not the least because it requires retroactively deeming invalid practically all the special counsels from the last 150 years. Though it will almost certainly be reversed on appeal, the delay engendered will last well into next year, which was no doubt the point.

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The Criminal Justice System Is Being Positively Kind to Donald Trump and MAGA Insurrectionists

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Likewise, the pending Georgia case has been sidetracked by an allegation of prosecutorial misconduct that is utterly extraneous to the case’s merits. The prosecutor’s inability to see the possibility that her personal conduct might be at issue means that here, again, the case will go nowhere for at least a year. For both the Florida and the Georgia cases there is a real possibility that Trump never sees the inside of a courtroom for trial.

Supreme Court’s Immunity Wreckage

Surprisingly, the only realistic prospect for justice lies in the Jan. 6 prosecution of Trump pending in Special Counsel Jack Smith’s federal indictment in the District of Columbia that Trump tried to stop the peaceful transfer of power. It is surprising, both because the case is more complex than the other federal indictment in the classified documents case (and complexity is always a challenge in a jury trial) and because it, too, has been delayed.

The cause of the delay was Trump’s initial claim of presidential immunity—a delay compounded by the Supreme Court’s suspect immunity decision in Trump v. United States that created a categorical immunity for “official” presidential acts, notwithstanding how those acts were carried out. The court said that acts that were characterized as official could not be the basis for any criminal prosecution—ever. That analysis is highly dubious, as it mistakes ends for means. Nobody doubts that removing the attorney general is an “official” act—but that shouldn’t make it lawful to remove him by poisoning him. Yet that is the clear demand of the court’s per se rule of characterization.

Initially, Trump had claimed that the entire indictment had to be dismissed because all of his actions on Jan. 6 were official in nature. As the case developed, he eventually conceded that some of his actions were private in his capacity as a presidential candidate, but that the official acts prosecution so infected Smith’s case that the indictment still had to be dismissed in its entirety.

The Supreme Court, in theory, split the baby, prohibiting prosecution for official acts while allowing it for private ones. But even in permitting private act prosecution the court erected numerous barriers to success. To begin with, a rule of characterization begs the question of characteristics. Many acts are arguably of a blended nature—where one act ends and the other begins is hard to separate. The conservative justices often settled the ambiguity by taking an expansive view of “official.”

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Worse yet, the court erected a novel evidentiary barrier even to the successful prosecution of private acts. According to the court, a president’s official acts are so sacrosanct that not only can they never be the subject of a prosecution, they cannot even be offered in a trial as proof in cases where doing so would help to prove the criminality of a president’s private actions. To cite the most obvious example impacted by this evidentiary ruling, Trump’s threat to fire the acting attorney general because he wouldn’t help him steal the election is an official act (under the Supreme Court’s ruling) and can’t be the subject of a criminal charge. But it is an evidentiary fact that resonates with and proves the intent behind Trump’s private actions—like his threats against Georgia officials.

Yet, because of its overly protective view of presidential power, the court said that even the very fact that Trump had thought about firing the acting attorney general was out of bounds and the special counsel could not even offer that incident as proof. To see another example, under the court’s new rule, an allegation that a president took a bribe to give out a pardon cannot offer the fact of the pardon itself as part of the proof of the case—rendering such prosecutions virtually impossible.

Jack Smith: Salvaging What He Can

In response to the court’s decision, the Special Counsel Smith has filed a second, slimmed-down indictment. Broadly speaking, the original indictment that charged Trump with criminal complicity for the Jan. 6 events identified three interrelated strands of behavior at the heart of his misconduct: his efforts through calls and meetings with state and local election officials to persuade them to block the election results; his speech on the Mall on Jan. 6 and the resulting violence; and his efforts to persuade then-Vice President Mike Pence to refuse to certify the election.

The Trump decision impacted this original case principally by requiring the special counsel to cut out all of Trump’s “official acts” from consideration. Most notably, the second indictment has removed all allegations relating to Trump’s interactions with Department of Justice officials in support of his efforts to pressure state and local officials. Those are now clearly out of bounds and the second indictment dutifully cut those allegations—though Trump’s interactions directly with those officials remain at issue.

For the most part, though, that was the only excision. To answer the Supreme Court’s focus on the private character of actions, the new second indictment expanded on its description of those acts. It emphasized, for example, that other than the DOJ officials (who are now wholly stricken), all of Trump’s efforts to steal the election involved conversations with and orders to private actors who worked for him in his capacity as a candidate, not as president. Thus, the new indictment emphasizes that Trump’s co-conspirators, like John Eastman and Rudy Giuliani, had no official governmental role and were acting on Trump’s behalf in their personal, private capacities.

But Smith also took a risk. In the new indictment he chose to retain the allegations that Trump tried to force Pence to decertify the election, even though the Supreme Court had suggested that those, too, might be subject to presidential immunity. Smith’s theory is since the president has no role in counting the electoral ballots, Trump’s conversations with Pence on this must have been as presidential candidate to his vice-presidential running mate.

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But therein lies the “hook” for further delay. Trump now argues (consistent with the possible guidance from the Supreme Court) that his attempts to influence Pence were also “official acts” involving presidential communications. He contends that the Pence allegations are subject to an immunity claim and that their continued presence in the indictment improperly infects the remainder of the indictment, requiring complete dismissal. That seems an unlikely and implausible argument: some portions of Smith’s charges relating to Trump’s efforts to sway state election officials and to create fake elector slates are clearly acts of a candidate, not an official and will, probably, survive the Supreme Court’s decision.

For even if the courts were to take a broad view that the threats to Pence were official conduct and that the allegations infect the whole indictment, the special counsel could (and likely would) remove those allegations and proceed with the remaining manifestly private actions of Trump the candidate. In the end, some portion of the case will go forward.

But the real problem is that the special counsel’s revised indictment will now generate a second set of pre-trial immunity appeals before it comes to trial. Appeals in this case may go more quickly, since the broad Supreme Court guidance has already been received. But even so, it seems highly unlikely that trial could occur before late spring of next year at the earliest, with sentencing (if there is a conviction) and post-trial appeals causing the case to linger well into 2026 before final resolution.

Trump: Gaming Due Process

It may not be the case that justice delayed is justice denied—but it is certainly the case that delayed justice offends legal sensibilities.

Sadly, the one salient lesson we can learn from all of this is that a motivated and well-funded defendant can take advantage of multiple avenues for delay. Trump has, indeed, figured out that due process is the Achilles heel of the judicial system—converting one of its signal virtues into a liability.

And so, the rule of law cannot save us. It can, however, be saved by us if we try. Writing and talking about Donald Trump is a soul-sucking exercise. One wants nothing more than for him to depart from the political and legal scene, leaving America at peace.

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Can Trump Still Dodge Accountability For Trying to Overturn the Election?

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It is easy, indeed far too easy, to become inured to the flood of allegations. Much as Trump’s continued recourse to childish, misogynistic, racist, and narcissistic rhetoric has deadened our capacity to be outraged, his pervasive criminality has stifled our ability to appreciate the full nature of his misconduct.

By volume alone, it exceeds that of any other politician in recent memory. By nature of its consequence, it has dwarfed all that comes before it. By its destructive impact on the judicial system, it bids fair to significantly diminish our cultural adherence to the rule of law.

What comes now, therefore, is a test of our sense of the meaning of the rule of law. Trump’s reelection would, effectively, absolve him of any responsibility for his alleged criminal acts and signal the end of our secular faith. If, and only if, Trump is defeated at the polls will the justice system be allowed to run its course. And only then can faith in the rule of law be restored.

© The UnPopulist, 2024