Donald Trump said he could murder someone on Fifth Avenue, and they would vote for him anyway. He didn’t, but they likely would have.
He told a court probation officer that he believed himself above the law. The Supreme Court agreed he was, and 77 million people voted for him anyway.
He unleashed hoodlums on our Capitol to disrupt the certification of votes because he didn’t like the outcome. They voted for him anyway.
Informed that the mob had erected gallows from which they would hang the vice president, his response was, “So what?!” They voted for him anyway.
Impeached twice, he was acquitted twice by the U.S. Senate, but in the end, the Senate leader of his party said it was for the criminal authorities to prosecute him. They tried and failed.
Despite a gag order, he defended himself by trashing judges, prosecutors, court officials, and their families. In so doing, he seriously undermined the justice system and the rule of law. They voted for him anyway.
The 78-year-old nabob called lawful proceedings “corrupt,” “rigged,” a “witch hunt,” and a “sham” over and over again. Special Counsel Jack Smith was “deranged” and “lamebrained.” Black prosecutors such as New York County District Attorney Alvin Bragg and New York Attorney General Letitia James were “racists.” And all were handmaidens of his political opponent, Joe Biden, the “worst president in history.’ They should have known it was all just trash talk. They voted for him anyway.
In 2020, he demanded that Georgia’s secretary of state, a Republican, “find” him the necessary votes to win the state. The case might have been his undoing, except the proceeding was sidetracked because the prosecutor had an affair with her chief assistant. No matter. They voted for him anyway.
He incontestably mishandled classified documents and, in the words of Representative Jasmine Crockett, the Texas Democrat, he stored “our national secrets” in “the shitter” on his Mar-a-Lago estate, and the evidence was overwhelming. Still, an overly Trump-friendly judge dismissed the case. They voted for him just the same.
Trump is the “artful Dodger” in Charles Dickens’s Oliver Twist—charismatic and confident, with a knack for evading the law. He was also a legal Harry Houdini, an escape artist emerging from a sealed water-filled tank. And all because voters gave him a healing benediction.
Trump’s mentor, Roy Cohn, succeeded in winning acquittals on three indictments, but each one was after trial. Like Cohn, Trump chose not to take the witness stand But, unlike Cohn, Trump defended himself behind a barricade in the courtroom corridor.
Trump avoided trial on three of his four indictments with motions and appeals until the clock ran out. As we say in the trade, “no trial, no conviction.”
When he was tried and convicted by a jury on 34 felony counts, the result was a judgment of conviction carrying no penalty, not even a fine, because he’d been elected, once more, as President of the United States.
Part of Trump’s success in court is attributable to prosecutorial or congressional incompetence and corruption, reminding us of Justice Benjamin Cardozo’s taunting l question, “Shall the guilty go free because the constable has blundered?”
Prosecuting Trump over the January 6 insurrection or the Mar-a-Lago documents were giant clams compared to a mere hush money payoff to a porn star in the runup to an election. (This week, the Justice Department said it was no longer pursuing Trump’s codefendants in the documents case.) But the wheels of justice creaked so slowly that he could get off because they voted for him.
Hamlet long ago decried “the law’s delay.” Unfortunately, Attorney General Merrick Garland proved as dithering as Shakespeare’s prince of Denmark, a man of action delayed by thought. He testified at his confirmation hearing that he would “begin with the people on the ground.”
Garland delayed appointing Jack Smith as special counsel. On November 15, 2022, in an op-ed in the New York Daily News, I called on Garland to indict Trump over January 6. The evidence was there. Garland passed the buck to Smith three days later. And Smith didn’t get around to indicting Trump until August 1, 2023.
There is blame to go around. Republican leader Mitch McConnell, while stating that Trump was “morally and legally” responsible for the January 6 insurrection, refused to convict Trump in the impeachment proceeding arising out of the riot and left criminal accountability to the Justice Department. Had Trump been convicted in the Senate, he would have been constitutionally disqualified from holding office.
It may be hard to follow, much less understand, the convoluted proceedings surrounding the prosecutions of Trump involving four indictments on 91 felony counts (two state and two federal), the myriad motions, and the appeals to the Supreme Court. But people ask me, as a former federal prosecutor, how this could happen in a country dedicated to the rule of law and the proposition that no one is above the law. Well, it did, and here’s how it all went down.
The January 6 insurrection and presidential immunity. Smith indicted Trump in the District of Columbia on August 1, 2023, on the events of January 6, 2021. The indictment included four charges: conspiracy to defraud the United States, obstructing an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against rights. The Court set a trial date of March 4, 2024, well before the November 2024 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.”
Trump moved to dismiss the case on grounds of a blanket presidential immunity. He claimed that everything he did in office was immune from criminal prosecution.
District Judge Tanya S. Chutkan promptly 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 granted immunity from criminal prosecution for everything he does in office. If that had been the case, Gerald Ford would have found no need to pardon Richard Nixon.
Trump appealed Chutkan’s decision to the D.C. Circuit. Usually, pre-trial motions in a federal case are not appealable before final judgment. But denying an immunity motion is immediately appealable.
On oral argument, Circuit Judge Florence Pan famously asked Trump’s lawyer, D. John Sauer, “whether a president could order SEAL Team Six to assassinate a political rival and still be immune from prosecution.” Sauer, whom Trump will soon nominate as Solicitor General, responded that he would unless first impeached and convicted—an astounding response at odds with jurisprudence going back to 1789.
Appeals take time. 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 was automatically stayed until the appellate court acts. Stay rhymes with delay.
Then, there was the petition for certiorari to the United States Supreme Court, which may not be decided before the end of the Court’s term on June 30, 2024. So Smith, finally realizing that he was in a jam for time, 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 been rarely used—49 times since 1925 and 19 times in the past five years. It was used notably regarding 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 staring him in the face, which could render any trial moot.
If granted, the petition would save months of wheel-spinning in the intermediate appellate court. Granting the petition would take four votes. Justices Clarence Thomas and Samuel Alito (who failed to recuse themselves) would deny the petition, doubtless because they deemed Trump a victim of political persecution. The four other conservatives (Chief Justice John Roberts, Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh), proving beyond cavil that they were in the tank for Trump, voted to deny. The Court had gone MAGA. There is one law for Trump and one for everyone else.
Roberts had stressed, quite aptly, that when the Court becomes supremely partisan, it undermines public acceptance of its decisions.
After piously declaring that the president is not above the law, Chief Justice Roberts created a presumption that what the president does is the law for all official acts.
The Court’s decision was at odds with the Constitution and the founding documents. The framers knew how to grant immunity to public officials if they wanted to. King George III had immunity. He could do no wrong. They gave members of Congress limited immunity for their “Speech and Debate.” At the time, governors in some states had immunity under their citations. They chose not to extend such immunity to the president.
The Constitution clarifies that if the president commits a crime, he can be impeached, removed from office, and then prosecuted criminally. Until Trump, no president had been brought to trial for a federal crime.
The majority held that the president, even after he leaves office, is immune from criminal prosecution for “core” conduct within his “conclusive and preclusive constitutional authority” and presumptively immune from “official acts,” even though the words “presidential immunity,” “official acts,” “presumption” and “core constitutional authority” are nowhere to be found in the Constitution.
The Court did say that the prosecution could rebut the presumption of immunity for “official acts” in a pre-trial hearing, with the result subject to appeal before the trial starts, an obstacle course for the prosecutor that made criminal liability virtually unachievable.
According to Roberts, all of a president’s official acts, defined without regard to motive or intent, are entitled to an immunity that is at least “presumptive” and quite possibly “absolute.” So, if a president receives a bribe to appoint a pal ambassador to Jamaica—or the president orchestrates a coup from the Oval—the majority says the criminal law (at least presumptively) cannot touch him.
What the justices in the minority overlooked is that presidential motive can be relevant, and criminal acts can never be official. Motive and intent are always appropriate in a criminal case. George Washington didn’t need immunity—only rogue presidents like Trump.
The Florida Debacle. Smith appeared to have misgivings from the start about the classified documents case. He dithered over the irrelevant fact that Trump did not steal classified documents to sell them, show them to others, or even give them away. According to a leaked report, Trump’s motive was innocent: ego or to keep trophies and souvenirs of his time in office. Of course, if a thief steals a moose head mounted on your wall, it makes no difference what the motive is. A different standard should not apply to Trump.
Then, there is obstruction of justice over the failure to deliver the Mar-a-Lago documents called for by the grand jury subpoena. Of all the things Trump was being investigated for around the country, obstruction of justice was the slam dunk.
The New York Times reported the damning evidence that a security camera caught a long-serving Trump staffer moving boxes after the subpoena demanding the return of classified documents. The Washington Post piled on with the statement that a Trump employee told investigators that documents were moved at Trump’s explicit direction post-subpoena.
There is the unwritten Justice Department policy of not filing an indictment within 60 days of an election. There was consideration for the December 6 runoff election in Georgia. But there was an urgency in bringing the case, and Smith had to select the appropriate venue.
Ask any former prosecutor. Smith’s catastrophic mistake was to bring the purloined documents case against Donald Trump in the Southern District of Florida instead of the District of Columbia. The jury pool in Florida would be favorable to Trump. In 2020, Trump won Florida with 51.2 percent of the vote. In the District of Columbia, he won 5.4 percent. Nevertheless, Smith waited until June 8, 2023.
To indict Trump in Florida over the mishandling of classified documents.
Judge Aileen Cannon of the Southern District of Florida was an admixture of bias and incompetence. The 43-year-old Trump appointee had never handled a case involving the nuances of classified documents or other high-profile showdowns. The appellate court twice rebuked her for erroneous decisions in Trump’s challenges to the Mar-a-Lago search warrant. She was eager to play into Trump’s delay strategy.
Justice Antonin Scalia once told me, “Federal district judges have an awful lot of power.” They can issue non-appealable interlocutory orders that determine the fate of cases or make them disappear. They are masters of cleaning up their dockets that way.
Smith must have thought he had good odds of avoiding the dreaded Judge Cannon when he opted for Florida. She sits in Fort Pierce. He filed the indictment in Miami, where the grand jury sat. The Southern District of Florida is administratively divided into five divisions: Miami, Fort Lauderdale, West Palm Beach, Fort Pierce, and Key West. Smith overlooked that Miami and Fort Lauderdale judges are not in the pool for Palm Beach cases. Fort Pierce, where the crime did not occur, is 68 miles north of Palm Beach, where some of the crimes did occur, and 128 miles north of Miami. There were 26 judges in the Southern District of Florida to whom the case might have been assigned. Smith’s odds were one in three of getting Cannon because of the peculiarity of local rules, which lumped Fort Pierce and Palm Beach together. Smith needed to draw a straight inside. He pulled the death card.
The documents case was a slam dunk. After he ceased to be president, Trump took classified documents from the White House, carted them to his Mar-a-Lago estate, and refused to return them when asked. He then moved the documents around the mansion to avoid federal officers sent by the Department of Justice to retrieve them. Eventually, the feds raided Mar-a-Lago.
The judges in D.C. are highly skilled in classified documents cases, and they know how to weigh and sift the competing issues of national security and the defendant’s due process rights. Most judges in Florida have never handled a classified documents case. For sure, Cannon never handled one.
Yes, D.C. had drawbacks as a venue, too. Trump would have moved to dismiss in D.C. because his team would argue that the case had to be brought to Florida, where the center of gravity of the alleged crime occurred. They might have argued that if all the documents had been taken to Florida while Trump was president, there would have been no D.C. crime. But Smith could have pushed past that. The mishandling began in the capital, too, and his intent to keep them was formed there. Moreover, Trump’s flouted requests were from the National Archives in Washington. Trump would also have argued that he couldn’t get a fair hearing in D.C., but the D.C. court had already ruled that the January 6 cases could be tried in D.C. with no problem selecting a fair and impartial jury.
Choosing a venue is always an important question. If you murder in New York, the prosecutor couldn’t move the case to Texas. For instance, while, hypothetically, it might have been possible for Smith to bring the case in New Jersey, where some classified documents seem to have made their way during a layover at Trump’s Bedminster golf club, that would have been a stretch.
D.C. was worth trying to secure. But I suspect Smith didn’t want to look like he was forum shopping and deliberately avoiding a red state. But so, what? He would be accused of political bias no matter what he did. Smith might have naively figured the documents case was so straightforward that he could win even with a South Florida jury, but that was before Cannon got the case. The likelihood that it would ever go to a jury disappeared with each passing day.
While the acclaimed prosecutor couldn’t have anticipated a jurist as hostile as Cannon, he should have expected that South Florida would be awash in jurors sympathetic to the former president.
Cannon vacated her scheduling order for a May 20, 2024 trial and refused to set another date. Lawyers call Cannon’s bizarre procedure a postponement sine die, which means somewhere between now and never. Smith had asked for a July trial date, but Cannon said it would be “imprudent and inconsistent” with her duty to “fairly consider the various pending pre-trial motions … [and] … critical CIPA [Classified Information Procedures Act] issues … necessary to present this case to a jury.” Then, Cannon dismissed the case on the spurious ground that Smith’s appointment was unconstitutional since the Senate never confirmed him. Her position was one that no judge except Clarence Thomas in an aside had ever endorsed. Smith appealed, but the passage of time ruled out a pre-election trial.
Smith had much else to answer for. He over-prosecuted his case. He did not need to join Trump’s valet, Waltine Nauta, and his Mar-a-Lago property manager, Carlos De Oliveira, as defendants. It only complicated discovery and played into Trump’s delay strategy. The two could have been indicted separately. This would have worked just as well if Smith had been looking for them to cooperate, and even if they had not chosen to aid Smith, the evidence against them would have been admissible against Trump, the sole defendant on trial, as acts that assisted the former president in committing the crime.
Everybody had known for months that the May 20 trial date wouldn’t happen, as Cannon let critical motions accumulate without a ruling. But Cannon’s orders shocked experienced lawyers, such as vacating the trial date and saying she’d set a new one after she decides all the pending motions. Smith might have approached the Eleventh Circuit for a writ of mandamus asking for a firm trial date. Instead, total inaction.
Cannon extended the time for Trump to file his notice until mid-June, delaying the time when she would have to make one of her most critical pre-trial rulings, knowing that they would be immediately scrutinized by the very Court of Appeals that had already reversed and rebuked her twice. If Cannon had worked on the motions and scheduled realistic deadlines, this case could have been ready for trial no later than January 2024.
Meanwhile, all this procedural kerfuffle only served Trump’s interest in delay. The real issue was that Trump not only kept classified information but littered the documents from the bathroom to the ballroom at Mar-a-Lago and obstructed efforts to retrieve government property. He was recorded talking about one document he shouldn’t have. Trump will never have to account for this.
Delay is in every trial lawyer’s bag of tricks. But judges, must throttle such approaches.
The Speedy Trial Act states, “In any case involving a defendant charged with an offense, the [judge]…shall… set the case for trial on a day certain…to assure a speedy trial.” The Supreme Court, in an opinion by Justice Samuel Alito, held that the public and the defendant are entitled to a speedy trial. Here, Cannon played into Trump’s hand. She refused to set a trial date before she could decide eight motions on her calendar.
The motions Cannon determined require a hearing, including motions former United States Attorney and legal analyst Joyce Vance observes as being ones “most judges would have given short shrift to.” For example, Trump filed a dilatory motion to broaden the scope of what “prosecution team” means. That would determine how broadly prosecutors are required to search for discovery that must be turned over to a defendant. Trump contended that instead of just prosecutors and law enforcement agents, the usual definition should include the White House, the intelligence community, the National Archives, and other denizens of the “deep state” who were neither investigators nor witnesses for this case.
If there ever was a case where justice was delayed and denied, it was this. Federal District Court in Washington D.C. has many hardcore conservative jurists appointed since Ronald Reagan’s day. I can’t imagine any of them facilitating Trump’s delay as Cannon has.
Georgia, the last chance. Luck plays a significant role in court, as in life.
The best bet for a speedy prosecution was the Fulton County, Georgia case. The prosecutor, Fani Willis, was not bound by Justice Department policies about not indicting before an election.
In Georgia, the election case was chugging along with four defendants pleading guilty, and Judge Scott McAfee denying motions to dismiss the core charges.
Then came the unexpected. The nine defendants in the case moved to dismiss the indictment and disqualify Willis when they discovered she had obtained a personal stake in the prosecution by financially benefiting from her romantic relationship with Special District Attorney Nathan Wade, whom she engaged to lead the prosecution team. The court found that the district attorney agreed to pay him $250 an hour, a low hourly rate for a lawyer of his seasoning. There was also a contractually mandated ceiling of a maximum of 60 hours per month.
It is not clear when the romantic relationship began and when it ended. Willis and Wade testified that it started after Wade was hired, but there was some suggestion in the record that it began earlier. McAfee found neither side could establish the time frame by a preponderance of the evidence.
Prosecutors are human beings, subject to the sins of the flesh, like everyone else. So, dismissing the defense motions as a distraction might be easy, an exercise of legal gimmickry.
The events benefitted Trump, and his position had substance. Criminal defendants are prosecuted free of any conflicting interest. Georgia courts held that the “administration of the law, and especially that of the criminal law, should, like Caesar’s wife, be above suspicion, and free from all temptation, bias or prejudice.”
McAfee conceded that a relationship between prosecutors alone would not require disqualification so long as neither could pay the other. Defendants argued that Willis and Wade traveled together between October 2022 and May 2023 on multiple sojourns, with Wade covering many expenses. The documentable expenses in Willis’s favor totaled $12,000 to $15,000.
The defendants contended that this was a kickback to Willis of state funds garnered from Wade’s salaried position, for which Willis had been responsible. Willis testified that she reimbursed Wade for her share with cash payments, but no one other than McAfee believed her. Willis’s aged father testified that she often kept sums of cash in the house for expenses. No one could testify to the contrary, and the court held that “the evidence did not establish the District Attorney’s receipt of a material financial benefit as a result of her decision to hire and engage in a romantic relationship with Wade.” He said: “Simply put, the Defendants have not presented evidence indicating that the expenses were not ‘roughly divided evenly.’”
McAfee held that the record contained insufficient evidence of actual conflict and denied disqualification.
Not that there wasn’t some evidence of the appearance of impropriety. Georgia courts have held that prosecutors may be disqualified over an actual conflict of interest, and some courts have held that they must also avoid the “appearance of impropriety.” McAfee found evidence of such appearance and an “odor of mendacity” in the testimony. But what relevance did any of this have to the prosecution of Trump?
Naturally, the defendants appealed, but this took time. The Georgia Court of Appeals disqualified Willis on December 19, 2024. It is not clear whether Willis will appeal to the Georgia Supreme Court.
When this happened, and a new prosecutor could be appointed, Trump was elected, dooming the case to the dustbin of history.
Smith’s Report. Smith filed a report to the attorney general made public on January 14, 2025, six days before Trump’s inauguration, arguing that he had a strong case on January 6. His report on the documents case has not yet been made public.
Any report coming before the election would be trashed as “political.” As it was, Trump dismissed Smith’s report as the musings of a “lamebrained prosecutor.”
Smith was up against it. A trial before the election was out of the question, and a report made after the election would be academic. While not as good as a conviction, the report might helpfully demonstrate, based on incontestable facts, that Trump was guilty of criminal behavior and didn’t just violate presidential norms but crossed the line into a breach of the laws he was sworn to uphold.
Smith’s glaring error, which he fails to explain adequately in his report on January 6, was his failure to charge insurrection. Why did he not bring charges against Trump for insurrection under section18 USC §2383? Section 2383 criminalizes assisting or engaging in any rebellion or insurrection against the authority of the United States. Smith’s report concedes there are “reasonable arguments” to conclude Trump did just that.
What is essential is that Section 2383 carries a penalty not present in any of the other federal criminal statutes Smith used to bring charges against Trump. It is the only arrow in the prosecutorial quiver that provides for disqualification from “holding any office under the United States.” Because of this penalty, Smith may have been able to move more quickly for a trial before the election since Trump’s guilt of insurrection might have brought about his disqualification. All the evidence was there.
The report notes lamely that indictments for insurrection are rare. That is true. Never before had a president sought to overturn an election by force.
Trump has not shied away from using antiquated laws to round up and deport noncitizens. These laws (such as the Insurrection Act) give vast power to presidents. In his inaugural address, Trump referred to the Alien Enemies Act. That’s the remaining part of the notorious Alien and Sedition Acts — which Thomas Jefferson said reflected a “reign of witches” — and has only been used three times before, most recently to detain Japanese nationals during World War II. On Trump, it’s becoming; on Smith, apparently not.
Smith then contends that definitions of “insurrection” are unclear, raising concerns that such a charge would endanger the more significant case. How so? The “larger case” could never be tried in time.
Smith omits from his discussion that a Colorado trial court, after a hearing in which Trump was present by counsel, found a fact that “actively primed the anger of his extremist supporters” and “acted with the specific intent to incite political violence and direct it at the Capitol.” and this finding was affirmed or assumed to the United States Supreme Court.
Instead, the report states:
“The Office determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for ‘incitement,’ …particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it.”
Smith admits that the “evidence established that the violence was foreseeable, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay.” The report later refers to “strong evidence” supporting those findings. However, Smith “did not develop direct evidence … of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6.”
It is not clear what Smith means by the weak phrase “full scope of the violence,” nor why an intent to cause violence would not be legally sufficient. Does he mean Trump intended to incite a soupçon of violence but not the mayhem?
So, Smith threw in the towel on insurrection “In light of the other powerful charges available” and the “unwarranted litigation risk” of charging Trump with inciting an insurrection, he decided not to level that charge.
The case in Manhattan. Attorney Alvin Bragg’s 34-count indictment over the cover-up of hush money payments to Stormy Daniels—Harvard Law Professor Laurence Tribe calls this case the “consolation prize” for those who believe in Trump’s legal accountability. Tribe sees it as an “election interference case,” not a mere payoff to a porn star.
The trial lasted 23 days. As noted, Trump did not take the stand.
The jury returned a guilty verdict on all 34 felony counts in the indictment. After the Supreme Court declined to stay the imposition of sentence, the judgment of conviction was imposed on January 10.
Jury selection was conducted. The same rules of evidence were followed. Opening statements were made, witnesses called and cross-examined, evidence presented, summations delivered. The same burden of proof was applied, and a jury made up of ordinary citizens delivered a verdict, and it was all conducted pursuant to the rules of procedure and guided by the law.
To be clear, the protections afforded to the office of the president are not a mitigating factor. They do not reduce the seriousness of the crime or justify its commission in any way. The protections are, however, a legal mandate which, pursuant to the rule of law, this court must respect and follow. However, despite the extraordinary breadth of those protections, one power they do not provide is a power to erase a jury verdict.
So, there you have it. The only trial in the nation’s history where a former president was indicted and convicted and a president-elect was convicted of a felony. And the penalty: less than a slap on the wrist.
The Special Counsel. The attorney general must first determine that a “criminal investigation is warranted,” the “investigation would present a conflict of interest for the Department of Justice or other extraordinary circumstances,” and it “would be in the public interest to appoint an outside Special Counsel.”
There was no need to appoint a special counsel in this case. Whether Trump was prosecuted by a Justice Department attorney or by a special counsel,” all roads led to Merrick Garland and the prosecuting attorney would be accused of apparent partisan bias because Trump was running against Joe Biden, and the Democrats hated him.
It is a flaw in our system that the executive branch can never be immune from an appearance of conflict when it prosecutes its own. Political bias is instinctive when the government prosecutes party members out of power—particularly high-level members trying to get back in—even where the evidence fairly shrieks their guilt. That’s just the way it is. The idea behind special counsels—and before that, the now defunct independent counsels such as Kenneth Starr—is that their appointment frees the Justice Department from the appearance of conflicting interests.
It’s mostly a quaint notion. While appointing a special counsel once quieted naysayers, it no longer does. Trump claimed from the get-go that Smith, his wife, and even his wife’s sister hate him. Just as the impeccably credentialed former FBI director Robert Mueller bought no peace, Smith’s appointment did not either.
If there is any bias or selectivity in prosecution, we have courts to rein in the prosecutor if bias exists.
That’s no reflection on Smith, a talented prosecutor who once headed the department’s Public Integrity Section. But it only added to the delay in prosecuting the election case. The Harvard-educated lawyer had been at The Hague and was delayed in Europe recovering from a bicycle injury. Once back in action, he could readily have indicted Trump for the documents, possibly for the fake elector scheme, and inciting the insurrection of January 6. The January 6 Committee gave him all the bullets he needed.
He knew he had to do it soon because the election—the reason Garland cited for appointing a special counsel in the first place—was looming on the horizon.
Trump’s Defense. The lawyers representing Trump spent most of their time avoiding the merits of the charges and asking for time.
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.
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 47th president, who have learned how to play the system.
Trump faced felony counts in four jurisdictions, and he wound up getting away with it all because he was elected president. This is something that the Founders of our Nation never intended.
Most people faced with such formidable charges would consider running away, throwing themselves at the court’s mercy, or becoming government witnesses. Not Trump. He showed no remorse, only arrogance.
Trump’s principal defense strategy was delay until an electorate could acquit him that may not have liked him but wanted a new approach to the domestic issues confronting the country: immigration, inflation, and wokeness.
Trump trashed all the judges in his cases, but Cannon, whose pro-Trump bias spilled from her decisions. He called her “a very highly respected judge, an astute judge, and a powerful judge” who “loves our country.” There has been speculation that the inexperienced Cannon will be his first nominee for the Supreme Court
So, what do I tell my friends when they ask me how Houdini got out of the tank? I could blame the culprits McConnell, Garland, Smith, Cannon, and the ethically compromised Supreme Court, as well as the self-destruction of Fani Willis.
I could cite what is undoubtedly commendable: Trump’s boldness, his unwillingness to admit defeat, and his realization of the possibilities of success in court, even when the case against you appears to be very strong.
I could cite Trump’s political shrewdness, realizing that we are a government of men and women, not laws to the degree that men and women administer the laws—and often they are weak, incompetent, ineffectual, or run scared.
I could also cite dumb luck, the same element that bailed Trump out of Atlantic City, where he took bankruptcy four times, which took him through countless charges of race discrimination, fraud, and sexual misconduct.
Donald Trump is America’s Immaculate Conception. Fortunately for us, the like of it never happened before. And, barring a second coming, it will most likely never happen again.
The post How Trump Escaped Jail or Acquittal by Election appeared first on Washington Monthly.
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