The last couple of weeks have brought a steady stream of bad news for people hoping that Donald Trump could be defeated in and through the legal process. Courts, it turns out, will not spare the American people from the task of deciding whether the former president gets a return trip to the Oval Office.
Not since the Civil War have American voters had such a responsibility thrust on them. It is often said about presidential elections that each one is “the most important” in our lifetime. So common is that claim that it mostly falls on deaf ears and voters go about their business, with many choosing to stay home and focus their energies elsewhere rather than on the political process.
This year the claim seems all too apt, however. The vote we cast in November won’t just be a choice of two candidates, it will be a choice about whether our form of government, with all its flaws, will endure.
Now that it seems that Trump’s various legal problems will not be resolved before November, it is time for all of us to face up to what history has put on our plate. Just look at Trump’s startling success in derailing various efforts to hold him legally accountable for his political shenanigans and crimes against the republic.
First came the Supreme Court’s decision to review Trump’s frivolous claim that presidents have lifetime immunity from criminal prosecution for things they do while in office. On Feb. 28, the court surprised many legal observers when it announced that it would hear the former president’s appeal from the D.C. Circuit Court of Appeals ruling that former presidents have no such immunity.
As an article on Scotus Blog noted, “In a one-page unsigned order, the justices ordered a federal appeals court to continue to keep on hold its ruling rejecting Trump’s claims of immunity from prosecution, and they fast-tracked the case for oral argument in late April. … Stressing that it should not be regarded as any sign of the justices’ views on the merits of Trump’s claims, the justices instructed the D.C. Circuit to keep its ruling on hold until the Supreme Court issues its decision.”
But waiting almost two months for oral argument hardly seems to be putting Trump’s case on the fast track, any more than waiting two weeks from the time Trump appealed to the Supreme Court to decide whether it would hear the case seemed like an expeditious consideration.
What all this means is that the schedule originally set by U.S. District Judge Tanya Chutkan to start Trump’s trial on charges arising from his role in the Jan. 6, 2021, attack on the Capitol is now on hold. Judge Chutkan had indicated she would set a new trial date “if and when” Trump’s immunity claims were resolved. While we don’t know when the Supreme Court will hand down a decision on those claims, it seems likely that it will not be before June. Following that decision, a trial in the District of Columbia would be unlikely to start before September at the earliest.
In the height of a presidential campaign, that starting date would only fan the flames of resentment and feed into Trump’s narrative that the Biden administration was guilty of interfering in the upcoming election. It seems likely that the D.C. trial will be postponed further — and if Trump wins, it may not happen at all.
This is the first of the recent legal battles that Trump won.
Then, on March 4, the court delivered another victory to the former president when it ruled that he could not be disqualified from a state ballot under Section 3 of the 14th Amendment to the Constitution.
That result was hardly surprising. But as former Judge J. Michael Luttig and Professor Lawrence Tribe correctly observe, “In doing so, all nine justices denied ‘We the People’ the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.”
Trump got even more than he asked for when a five-justice majority went further than it had to and ruled that Congress would have to an act enabling legislation before anyone could be disqualified as an insurrectionist.
As Luttig and Tribe note, “the Court’s majority decreed that mere inaction by Congress would suffice to lift that disqualification. Thus, by effectively flipping on its head the congressional power to remove disqualification, the Court seized for itself the role that the Fourteenth Amendment expressly and deliberately left to Congress—that of deciding whether a particular oath-breaking insurrectionist poses too little danger to the republic to be permanently barred from holding or seeking public office.”
The last few days have delivered more victories in Trump’s ongoing efforts to gum up the wheels of justice.
On Thursday, Federal District Judge Aileen Cannon did reject Trump’s bid to throw out his trial in the classified documents case, but as the Associated Press noted, that still “left unanswered questions over when the case might proceed to trial.”
Then Trump’s New York trial on charges of paying hush money to porn star Stormy Daniels was delayed for at least a month owing to the failure of the U.S. attorney for the Southern District of New York to turn over evidence that it has long had in its possession. Manhattan district attorney Alvin Bragg, an article in Salon states, “repeatedly requested those records from federal prosecutors, who investigated the hush-money payments at the center of the case years prior, for more than a year and had only received a portion of the material before now.”
Law Professor Bennett Gershman claims that “The public interest in a fair and timely criminal trial has been undermined by this development which may not only delay the most historic criminal trial in American history but even worse, to scuttle it entirely.”
Finally, there was Friday’s ruling in Georgia that Fulton County DA Fani Willis would not be disqualified from leading the prosecution of the former president for crimes committed in that state in the wake of the 2022 presidential election. According to The Guardian, Steve Sadow, Trump’s Georgia lawyer, “has already suggested he will appeal the ruling. Even if McAfee’s decision is upheld by higher Georgia courts, the episode gives Trump another avenue to try and drag up the case and try and undermine any potential future conviction.”
Where does this leave the rest of us?
It is already clear that millions of Americans are disillusioned and turned off by the unfolding presidential campaign. They are exhausted and will be tempted to tune out as the stridency and negativity of the campaign escalates, with each side claiming that the other poses an “existential threat” to the American way of life.
But we cannot afford to give in to that temptation. We need to be clearheaded and determined to vote in November, as if the fate of American democracy depended on our willingness and ability to do so. Because this year, it does.
Recent legal developments in Trump’s various cases should have made it clear that no one — no judge, no jury — is coming to save us or to rescue us from the work that lies ahead. Democratic citizenship has always demanded a kind of courage, civic courage. And that has never been truer than it is today.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.