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Donald J. Trump has made history as the first former President to be accused of committing a felony. And not just one, but ninety-one felonies spread across four cases in as many federal and state venues.
Justice Department Special Counsel Jack Smith has charged Trump with election subversion in violation of federal law in Washington, D.C., and with mishandling classified documents in Florida. Trump has also been indicted under Georgia law for election interference and under New York State law for making illegal hush-money payments to an adult film star (see sidebar on page 32).
The former President is also making history with his defense strategy. Trump has loudly and hysterically claimed to be the victim of political persecution, denying all culpability for his alleged crimes. But his actual strategy has little to do with the merits of the cases. As numerous commentators have observed, his primary defense is all about delay.
The goal is to postpone these trials until after the November presidential election, which he is desperately campaigning to win to avoid going to prison. Once reinstalled in the White House, he would be able to order his new Attorney General to drop the federal prosecutions or, alternatively, he could simply try to pardon himself. He would also be in a position to leverage the power of the presidency to halt his state cases, at least for the duration of his term in office.
The strategy is as simple as it is insidious. This is especially true in Smith’s all-important election-subversion prosecution, in which Trump stands accused in a four-count indictment filed on August 1, 2023, of obstruction of the January 6 joint session of Congress that year; conspiracy to obstruct the joint session; conspiracy against the United States; and conspiracy to deny voters across the country their right to a free and fair election.
On December 22, the U.S. Supreme Court gave Trump’s game plan a boost when it issued a one-sentence order denying Smith’s request for an expedited review of Trump’s claim that he enjoys “absolute immunity” and other Constitutional protections from prosecution. Trump’s lawyers contend that this immunity applies to any acts he committed within the “outer perimeter” of his official duties as President.
The Supreme Court’s order returned the case to a three-judge panel of the federal District of Columbia Court of Appeals to review the blistering forty-eight-page opinion issued on December 1, 2023, by District Court Judge Tanya Chutkan denying Trump’s motions to dismiss the prosecution.
Chutkan, who will preside over the trial, was appointed to the bench by President Barack Obama in 2014 and has since earned a reputation as a “temperate but unflinching” jurist. She rejected Trump’s immunity claim, stating:
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass . . . . [The] defendant’s four-year service as Commander-in-Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
On the issue of whether Trump’s acquittal in his second Senate impeachment trial—in which he was charged with inciting the January 6 insurrection—barred Smith’s case from going forward, Chutkan concluded:
“[N]either traditional double jeopardy principles nor the Impeachment Judgment Clause [Article 1, Section 3, cl. 7 of the U.S. Constitution] provide that a prosecution following impeachment acquittal violates double jeopardy.”
She also rebuffed Trump’s due process and First Amendment arguments, reasoning:
“[I]t is well established that the First Amendment does not protect speech that is used as an instrument of a crime, and consequently the indictment—which charges [the] defendant with, among other things, making statements in furtherance of a crime—does not violate [the] defendant’s First Amendment rights.”
The D.C. Circuit heard oral arguments in the case on January 9. The circuit panel consisted of two liberal jurists—Florence Y. Pan and J. Michelle Childs—appointed by President Joe Biden, and Judge Karen L. Henderson, who Slate legal writer Mark Joseph Stern has described as an “arch-conservative” who took “a radical turn in the Trump era.”
Prior to the hearing, Trump’s claims had been widely panned by legal scholars as “weak” and even “idiotic.” By most accounts, matters went from bad to worse for Trump at the hearing. Trump’s lawyer, D. John Sauer, a former solicitor general of Missouri, advanced the preposterous assertion that Presidents could go so far as to murder political opponents and remain immune from criminal prosecutions after leaving office unless they were first convicted by the Senate in an impeachment trial.
Even Judge Henderson expressed skepticism, remarking, “I think it is paradoxical to say that [a President’s] Constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.”
Henderson’s reaction was especially noteworthy, given her recent ultra-right record. In a 2017 dissenting opinion on the abortion rights of a pregnant undocumented teenager, for example, she argued that undocumented people are not “persons” within the meaning of the Fourteenth Amendment, and therefore have no due process rights to abortions.
In a 2018 dissent that foreshadowed rightwing critiques of the “administrative state,” she argued that the operational independence of the Consumer Financial Protection Bureau rendered the agency’s creation unconstitutional.
Once reinstalled in the White House, Trump would be able to order his new Attorney General to drop the federal prosecutions or, alternatively, he could simply try to pardon himself.
Two years later, Henderson joined a panel opinion holding that the House Judiciary Committee could not enforce a subpoena served on former White House Counsel Don McGhan, and another panel opinion that ordered the dismissal of criminal charges against former Trump National Security Adviser Michael Flynn. Both rulings were subsequently overturned by the full D.C. Circuit, although Trump later pardoned Flynn.
Equally alarming, The Washington Post reported in 2022 that a human relations survey commissioned by the D.C. Circuit revealed that of the more than seventy law clerks Henderson has hired since 1990, only one was female.
Whichever way the panel rules on the election-subversion case, another round of appeals to the Supreme Court will follow. The consensus among pundits is that Trump will lose before the high court, even though it is now dominated by six conservatives, three of whom were nominated by Trump himself.
In a December 24 television appearance on Face the Nation, CBS News national legal correspondent Jan Crawford predicted that the Supreme Court Justices “are not going to rule that [Trump] is immune from criminal prosecution.” She added, “I don’t think it’s even going to be close. It could be 9-0.”
Former federal prosecutor and MSNBC analyst Glenn Kirschner speculated in a series of posts on X (formerly Twitter) that the Supreme Court would rule against Trump if for no other reason than to protect its own Constitutional prerogatives and standing:
“[I]f the court bestows upon Trump absolute immunity, thereby putting him out of reach of our nation’s criminal laws, the Supreme Court will have demoted itself to a second-class branch of government, as Trump could then commit any crime he wished in efforts to undermine the authority of the Supreme Court.”
Still, any further deliberations by the Supreme Court, even if it denies review, will eat up precious time. Judge Chutkan has stayed all proceedings while the appeals play out, all but ensuring that the March 4 trial date she had previously set will be pushed back by weeks, if not months. As the clock ticks ever closer to November, both Chutkan and Special Counsel Smith will have to contend with the Justice Department’s longstanding policy of not trying politically sensitive cases within months of an election.
The Supreme Court is also reviewing two other cases that could affect Smith’s election-subversion case. On December 13, the court announced it would hear an appeal in the case of Fischer v. United States, brought by January 6 defendant Joseph Fischer, who claims that the federal obstruction statute (18 U.S.C. §1512 (c)) he was found to have violated was designed to apply only to white-collar cases involving the destruction of documentary evidence, not to attempts to physically disrupt the work of Congress. If Fischer’s interpretation prevails, his conviction—along with those of about 300 other insurrectionists—could be reversed.
A reversal of Fischer’s conviction could also knock out two of the four counts in the special counsel’s indictment against Trump, which are based on the same obstruction statute.
In addition to Fischer, the Supreme Court has agreed to take up the Colorado Supreme Court’s ruling in late December in Anderson v. Griswold, which disqualifies Trump from appearing on that state’s presidential primary ballot under the insurrection clause (Section Three) of the Fourteenth Amendment. The court has scheduled oral arguments in Anderson for February 8.
If the Supreme Court’s conservative members—who like to describe themselves as “textualists” and “originalists” who strictly adhere to the original and plain meaning of legal texts—remain true to their stated principles in Anderson, they likely will uphold the Colorado ruling. If they do not, as is widely expected by most court watchers, the election will most probably proceed in every jurisdiction with Trump on the ballot.
Adding heightened drama to the situation, the Supreme Court could wait to release its decisions in both Fischer and Anderson until the conclusion of its current term at the end of June.
Smith is also experiencing rough sailing in Florida, where he is prosecuting Trump for taking and failing to return classified and sensitive national security documents. While the documents case is relatively straightforward, and the trial should be comparatively brief, Smith must contend with District Court Judge Aileen M. Cannon, who has been selected to preside over the trial. Cannon is not only inexperienced and a staunch conservative member of the Federalist Society, but she also appears to be outright biased in favor of the former President.
In December 2022, the Eleventh Circuit Court of Appeals issued a stinging reversal of Cannon’s rulings limiting the government’s use of evidence seized by the FBI at Trump’s Mar-a-Lago golf resort in Palm Beach, Florida. Despite that rebuke, however, Cannon has been slow-walking pretrial motions and discovery to such an extent that the scheduled trial date of May 20 will likely be reset for later in the year, creating another potential conflict with the Justice Department policy against trying politically charged cases close to elections.
With the federal prosecutions stalled, attention is turning to Trump’s state prosecutions. If Smith has to wait to see Trump in the dock, Manhattan District Attorney Alvin Bragg’s hush-money prosecution, which has been set for trial on March 25, may be the first to be conducted.
“[I]f the court bestows upon Trump absolute immunity, thereby putting him out of reach of our nation’s criminal laws, the Supreme Court will have demoted itself to a second-class branch of government, as Trump could then commit any crime he wished in efforts to undermine the authority of the Supreme Court.” – Glenn Kirschner
The indictment filed against Trump on April 4, 2023, alleges thirty-four felony counts of falsifying business records in contravention of New York Penal Law §175.10. The statement of facts filed along with the indictment alleges that three people—identified by press reports as a former Trump Tower doorman, former Playboy model Karen McDougal, and adult film star Stephanie A. Gregory Clifford, known professionally as Stormy Daniels—were paid an aggregate of $310,000 as part of a “catch-and-kill” scheme designed to keep Trump’s affairs with McDougal and Daniels secret during the 2016 presidential campaign.
Such funds, Bragg alleges, were falsified in the Trump Organization’s business ledgers as legal fees paid to former Trump attorney Michael Cohen when they were, in fact, unreported campaign expenditures that ran afoul of both federal and New York State election laws.
Although Bragg’s legal team will try the case in lower Manhattan, a venue generally unfriendly to the former President, they will have to convince a jury to believe Cohen, a convicted felon who in February 2018 pleaded guilty in a federal case to eight counts of criminal tax evasion and campaign finance violations.
Of all the prosecutors pursuing Trump, none has been more aggressive than Fulton County, Georgia, District Attorney Fani Willis. On August 14, 2023, Willis obtained a sprawling ninety-eight-page indictment against Trump and eighteen other defendants for election interference in breach of Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO) and on charges of conspiracy, forgery, solicitation, and false statements. Since then, four defendants, including former Trump-affiliated lawyers Sidney Powell, Jenna Ellis, and Kenneth Chesebro, have pleaded guilty. The trial of the remaining fifteen is expected to last months, and no formal date has been set, although Willis has requested August 5.
Amid all the uncertainties surrounding the multipronged prosecutions attempting to bring Donald Trump to justice, one thing remains clear: If the effort stalls, it will fail, and failure could spell the end of American democracy and the rule of law. The race is on.
Trump’s Legal Travails
Major pending cases (a partial list through January 16, 2024).
Criminal Cases
Federal
United States v. Donald J. Trump, District of Columbia. Brought by Special Counsel Jack Smith, alleging election subversion. Trial proceedings have been stayed pending appeal of Trump’s motion to dismiss on grounds of presidential immunity and for other reasons.
United States v. Donald J. Trump, et. al., Southern District of Florida. Brought by Special Counsel Jack Smith, alleging illegal retention of classified and sensitive national security documents. Trial is set for May 20 but likely will be delayed.
Fischer v. United States, U.S. Supreme Court. Depending on the scope of the high court’s ruling, this case could invalidate two obstruction counts alleged in the special counsel’s election-subversion indictment of Trump.
State
People of the State of New York v. Donald J. Trump, County of New York, Manhattan. Brought by Manhattan District Attorney Alvin Bragg, alleging illegal hush-money payments. The trial is set for March 25.
State of Georgia v. Donald J. Trump, Fulton County, Georgia. Brought by Fulton County District Attorney Fani Willis, alleging election interference. No trial date has been set yet.
Civil Cases
Federal
Anderson v. Griswold, U.S. Supreme Court. The court will review the Colorado Supreme Court’s decision to disqualify Trump from appearing on the state’s presidential primary ballot under the insurrection clause (Section Three) of the Fourteenth Amendment. Oral arguments have been set for February 8.
Swalwell v. Trump, District of Columbia. On December 1, 2023, the D.C. Circuit Court of Appeals rejected Trump’s claim of presidential immunity that had been raised to block civil damages lawsuits brought by California Representative Eric Swalwell, a Democrat, and others for injuries sustained in the January 6, 2021, insurrection. No trial date has been set yet.
E. Jean Carroll v. Donald J. Trump, Southern District of New York. A jury verdict was rendered on , awarding the plaintiff $5 million for sexual battery in the first case. The second trial for defamation began on .
State
People of the State of New York v. Donald J. Trump, et. al., County of New York, Manhattan. Civil fraud action brought by New York Attorney General Letitia James. Summary judgment on one count was granted on September 27, 2023. A trial on the remaining six counts was completed on December 14, 2023. Closing arguments were delivered January 11.
Update: On February 6, the D.C. Circuit Court of Appeals unanimously rejected Donald Trump’s claim that he is immune from prosecution for alleged criminal acts committed as President to overturn the 2020 election in a chain of events that led to the January 6 attack on the Capitol. The court gave Trump until February 12 to appeal the ruling to the U.S. Supreme Court. In the meantime, Special Counsel Jack Smith’s election-subversion case remains stayed. - B.B.