With four criminal prosecutions and an array of efforts to disqualify Trump from running, the challenge for the judicial system — in particular, for the nine justices who sit at its apex — is whether it can hold the former president accountable in a way that is consistent with the Constitution and fair to Trump. And do both in a way that enables voters to know before the voting starts whether the likely GOP nominee committed multiple felonies. The outcome of the election — and nothing short of how Americans regard the rule of law — might be at stake.
The progress of the two federal prosecutions offers a pair of contrasting case studies in what, and what not, to do. The election interference case before U.S. District Judge Tanya S. Chutkan in Washington is a lesson in mostly appropriate case management. After Trump was indicted in August, Chutkan set a March 4 trial date. That schedule was ambitious — and very likely won’t be met as Trump presses his absurd, borderline-frivolous claim of absolute presidential immunity from prosecution. But she gave Trump a full seven months to prepare and would have allowed the trial to be concluded before the general-election campaign was in full swing. Chutkan ruled swiftly to dismiss Trump’s claim.
And she tried — here is where the mostly part comes in — to contain the most dangerous part of Trump’s outbursts against prosecutors, court personnel and witnesses. Chutkan’s gag order tried to balance Trump’s First Amendment rights to assail the prosecution with the need to protect witnesses and court personnel from intimidation and potential violence.
When Trump, inevitably, appealed that order, an appeals court panel found the order went too far in barring Trump from personally going after special counsel Jack Smith and was too vague in preventing Trump from “targeting” witnesses. But here’s another basis for optimism: The panel that modified Chutkan’s order was composed of three appointees by Democratic presidents; it’s safe to presume they are no Trump fans, but they treated Trump’s First Amendment rights, particularly as a presidential candidate, with utmost seriousness. Trump has taken the dispute to the full appeals court, of course, but the system — we’ll get to the timing of the trial in a bit — is working as it should.
Not so in Florida, where District Judge Aileen Cannon, a Trump appointee, is slow-walking what should be a reasonably straightforward case. Cannon got off to an inauspicious start when, at the outset of the classified-documents case, she took the extraordinary step of naming a special master to oversee the government’s review of the documents the FBI seized. An appeals court slapped her down, but Cannon doesn’t seem chastened. Rather, she seems to be bending over backward to accommodate Trump and, consciously or not, aid his efforts to delay the trial until after the election.
Where Chutkan ruled with alacrity, Cannon dawdled. She has set, and provisionally reaffirmed, a May 20 trial date but pushed back pretrial deadlines, so that target is highly unlikely to be met; Cannon herself, while rejecting Trump’s request for a postponement, said she has “a hard time seeing how realistically” the trial could go forward in May, and she sympathized with Trump’s claims that a massive amount of evidence — Cannon called it “exceedingly voluminous” — gives him inadequate time to prepare. “I am not quite seeing a level of understanding on your part to these realities,” she told prosecutors.
The reality is that Cannon, on the bench three years and with just a handful of trials under her belt, has never managed a case of this importance or complexity. As a result, a case that ought to have been brought to trial before this year’s election now appears destined to drag past November — to the benefit of no one but Trump.
But the most important legal decisions in this election — indeed, the most important votes that will be cast in 2024 — will belong to the nine justices. The fact that there are six Republican-appointed justices — three named by Trump — does not necessarily portend party-line votes in his favor. There is a distinction, when it comes to the justices, between partisanship and ideology; most of them hold no brief for Trump himself, as they have demonstrated in previous cases. One example came in 2020, when Trump was still president, and the Supreme Court, voting 7-2 in an opinion by Chief Justice John G. Roberts Jr., rejected his bid to block a New York grand jury subpoena for his financial records.
I expect much the same when the court takes up Trump’s claim that he enjoys absolute immunity from prosecution, even after leaving office, for his actions as president. Almost nothing in the court’s previous rulings on presidential power offers support for this assertion, and it would be stunning if Trump were to garner more than two votes, if that, in support.
The far bigger challenge for the justices is ensuring that Trump does not manage, yet again, to game the system by maneuvering to delay trial into summer or beyond. On that score, the justices’ decision not to take up the immunity matter immediately, as special counsel Smith asked, was regrettable but not necessarily disastrous. The appeals court has the case on a speedy timetable, and the justices must take care to do the same and not let Trump run out the clock.
The second monumental Trump case involves Section 3 of the 14th Amendment and the issue of whether Trump can be removed from the ballot for having engaged in insurrection. Unlike the immunity dispute, this is a case that I think Trump should, and is likely to, win — again, with votes from justices across the ideological spectrum and not because the Republican appointees are in the tank for him.
The language of Section 3 clearly could be used to disqualify Trump from running. But it is unimaginable that the court would give state courts or other state officials the authority to do so. The consequences of such a move would be so dangerously destabilizing to the nation that the court will almost certainly resort to one of the many legal off-ramps that would prevent Section 3 from being deployed against Trump. Indeed, it is easier to imagine a unanimous ruling to that effect than one in which a majority allows states such as Colorado or Maine to exclude him from the ballot.
Hence my guarded optimism for the legal system in 2024. Trump will bellow about weaponized prosecutions and hack judges. But he’ll be treated fairly. And, assuming the courts fulfill their constitutional obligations, voters will have the information they’ll need in advance of the election that could return him to office.
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