The Trump Legal Marathon

[ Posted Thursday, April 25th, 2024 – 16:15 UTC ]

There was activity in three separate court cases against Donald Trump today: two major courtroom events, as well as a ruling in an older case. The big ones were the continuation of Trump's current criminal trial in New York for another day of testimony (which ended with the start of the first cross-examination of a witness by the defense), and the Supreme Court finally (after a pointless two-month delay) hearing Trump's sweeping claims to presidential immunity. The ruling was from a judge in New York who just rejected Trump's move to hold a new trial or at least reduce the damages in the $83 million civil judgment against him for defaming E. Jean Carroll. The judge shot down both notions, so Trump's still on the hook for the full amount. But it was the two other courtrooms which were splashed across the headlines.

It can be tough to read the Supreme Court tea leaves and guess how each justice is going to rule on any particular case, but the consensus that seems to be emerging among court-watchers today is that Trump's breathtakingly-broad claim to presidential immunity (which included his lawyers struggling to justify how a president could order SEAL Team Six to assassinate a political opponent, or even to stage a coup, without facing any sort of legal risk for doing so) will almost certainly not survive intact. However, the consensus also seems to be that the appellate court decision that denied all of Trump's claims might be amended by the high court.

I'm not going to go into the details of the case (plenty of others are doing so, obviously) other than to point out that the Supreme Court took it upon itself to adjudicate an issue that the lower courts (both the trial court and the appellate court) didn't even bother with: the difference between "official acts" and acts that were purely personal or political in nature. Some of the conservative justices appear to want to define the line between the two, and declare that presidents who perform some of these official acts would be immune from criminal prosecution for them even after leaving office. The best the prosecution might get in a decision is that some acts, while not prosecutable, can still be brought up as evidence during a criminal trial for other actions. The hypothetical case discussed by the justices and attorneys that is the best example of this would be if a president accepted a huge bribe in exchange for naming someone to an ambassadorship. The legal hair they are trying to split is that the nomination of such an ambassador couldn't be prosecuted as a crime (since it is an official act and constitutional duty of the president), but could be brought up as evidence to prosecute the crime of bribery. If the nomination were excluded from the case, then half of the quid pro quo bribery equation couldn't even be presented to the jury -- which is kind of ridiculous.

But whatever the high court decides, it is looking like they're going to split these fine legal hairs and then send the case back to the lower courts to re-examine certain aspects of it. Which will cause lots of delay -- so much delay, in fact, that it would almost guarantee that the federal January 6th trial doesn't even begin until after the election. Which gives Trump precisely what he's looking for, of course -- even if the judgment largely goes against Trump (by rejecting his sweeping claims of being immune for just about everything).

In writing about this (as well as the national security documents case languishing down in Florida) journalists routinely point out at this point that: "Trump, if he is re-elected, can just order his Justice Department to make these cases go away." But today I'd like to put a more optimistic spin on things, since the flip side of this never seems to even get mentioned.

What if Trump loses the election?

If Trump loses, then he will have no power over the Justice Department and all the cases will go forward. What timeline this all happens on is not clear, but by next spring or summer all three of the outstanding cases against him could go to trial and be decided. In fact, Trump may find himself charged in two other election-interference cases at some point along the way as well.

Let's do a quick rundown of Trump's status in all the cases to date. [The Washington Post has an article up with a nice graphic showing all of this as well, I should mention.]

In the federal January 6th case, the special prosecutor made the decision to zero in on Trump. There were other people named in the charges, but only peripherally as "unindicted co-conspirators." Jack Smith chose to keep the case as simple as possible, with the sole focus being Donald Trump. But there are two other ways this could have been handled as well.

The first is to charge everybody -- or at least "everybody who hasn't turned state's evidence and is now helping the prosecution," to be accurate. This is the route the Georgia prosecutor took, charging over a dozen people with a variety of election-interference crimes, all linked together with RICO charges (which are quite serious).

The other way to handle it is the opposite: charge everyone but Trump. Nevada, Michigan, and now Arizona have all indicted the "fake electors" in their respective states. Nevada stopped there, but both Michigan and Arizona also indicted the people close to Trump who orchestrated the entire fake-elector scheme. But Trump wasn't indicted in any of these cases -- he wasn't even named in the Nevada one but was (as an unindicted co-conspirator) in both Michigan and Arizona.

Then there is the documents case in Florida, where Trump was indeed indicted for his refusal (even after being served a subpoena) to hand back documents with national security secrets to the National Archives.

This adds up to Trump currently facing three outstanding court cases, with two others looming as possibilities (Michigan and Arizona can always go back and indict Trump in these cases, but even if they do so they might wait until after the current cases have been decided).

That's a lot of cases, you have to admit. And no matter what happens in the election, at least two (and possibly four) of them are state-level charges, not federal. So even if Trump does win a second term -- which would halt all the cases against him while he serves it -- the state-level charges will still be waiting for him afterwards.

But if he doesn't win then at some point soon after the election Trump will run out of delaying tactics in all the outstanding cases. Which means they'll go to trial.

Justice delayed may still prove to be justice denied, since at least one of the January 6th cases really should be heard in court before America votes in November. Donald Trump is essentially charged with trying to orchestrate a coup to overturn his election loss, which is about as serious a crime as can be imagined for a United State president (or even "presidential candidate"). But Trump's delaying tactics (possibly aided and abetted by the Supreme Court dragging their feet) might push everything out past the election.

This won't really be a huge problem if he loses, though. Justice will eventually catch up with him, in that case. He'll have to sit in various courtrooms and hear the details of the accusations against him being presented to a jury, and he won't have any choice in the matter. Even with his endless appeals, at least one of these cases could easily begin before the end of this calendar year, and all of them could move forward by the middle of next year (at the absolute latest). We're only in the second week of Trump's first criminal trial, so there is still a sense of newness about an ex-president in a courtroom, but by this time next year this may have become almost commonplace, to put this another way.

Of course, if Trump loses any of these cases -- especially cases that might lead to a prison sentence -- then he will have to exhaust all of his appeals before he truly pays a price. And you just know that Trump will file as many appeals as he and his lawyers can think up, and each and every one of them will probably have to wind up at the Supreme Court before Trump's legal options are truly exhausted. This could take an enormous amount of time.

So assuming (optimistically) for the sake of argument that Trump does lose the election, by the middle of next summer he could have lost all four criminal trials against him. He might even face two more, if Arizona and Michigan decide to charge him. Whether he is actually sentenced to prison time in any of them is impossible to predict, but he likely won't do a day of it until after all the appeals are exhausted. So even if he is convicted multiple times, Trump may not wind up paying the price for any of it even in Joe Biden's second term. That would be an extraordinary amount of delay, but then Trump is an absolute master of creating legal delays.

Will we ever see Trump in an orange jumpsuit? Well... maybe. But even if that does come to pass, it's probably going to take a long time before it happens. And, sadly, that's the optimistic read on things.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


7 Comments on “The Trump Legal Marathon”

  1. [1] 
    Kick wrote:

    Some of the conservative justices appear to want to define the line between the two, and declare that presidents who perform some of these official acts would be immune from criminal prosecution for them even after leaving office.

    If I was President Biden, I would begin now making a list of which official acts I was planning to do.

    Put on official speed dial:
    * 1st SFOD-D
    * NSWDG
    * USSF
    * 24th STS

    This would be an official act just in case the need arises to act officially.

    So Delta Force, SEAL Team Six, Space Force, and 24th Special Tactics Squadron... by land, sea, space, and air... the CIC can never be too officially prepared to act in an official manner (not personal).

    But hold the phone/wait just a minute. This official act seems more like an act that would be best performed officially by USAISA a.k.a. Task Force Orange.

    And... no... I'm (officially) not making this up. :)

  2. [2] 
    Kick wrote:

    Will we ever see Trump in an orange jumpsuit?

    You'll more likely than not have to settle for the bitter angry old man in orange clown face and maybe Defendant Donald sporting an "ankle bracelet" and serving home confinement if he's ever convicted.

    The good news is that due to his multiple criminal indictments and being sued in multiple civil courts by so many police officers and American citizens to whom he caused harm that he'll spend the rest of his remaining senior years (hopefully multiple decades) miserable and whining (as usual) and in litigation all across the United States. Poor Donald.

  3. [3] 
    Mezzomamma wrote:

    I wouldn't bet against the even more severe sentence of dementia of some variety.

  4. [4] 
    MtnCaddy wrote:

    I disagree that the sentence will be home confinement. That would allow him to continue to disrupt and otherwise poison our Constitutional Republic. Michigan and Nevada are investigating the fake electors, and in the Arizona case Trump is known to be “unindicted co-conspirator”as they’ve they’ve
    charged their fake electors.

  5. [5] 
    Kick wrote:


    I wouldn't bet against the even more severe sentence of dementia of some variety.

    Me neither. It's hereditary and he already shows obvious signs of it... and why I figure he'll somehow wangle his way out of doing "hard time."

  6. [6] 
    Kick wrote:


    I disagree that the sentence will be home confinement.

    In a just and fair system, so do I, but not every crime even requires minimum sentencing -- only fines and maximum sentencing -- and haven't we seen far too many rich old white men manage to finagle/wangle their way out of meaningful "time" one way or another? If convicted, Donald has several trump cards with which to play, not the least of which are "diminished faculties" (discussed above with Mezzomamma) and lots of Benjamins for multiple appeals.

    Case in point, for the unlawful retention of classified documents the sentencing for each count is the payment of fines up to a maximum or imprisonment up to five years or both. There are no minimums. And who is the judge (at present)?

    That's part of my reasoning. Hope I am 100% totally wrong. :)

  7. [7] 
    nypoet22 wrote:

    Donald will be long dead before any of his convictions are upheld or assets are liquidated and distributed among his creditors.

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