This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
The One Court That Will Decide Trump’s Fate
It’s Not Any of the Usual Suspects
By Stephen Golub, July 3, 2023
It seems like you can’t tell a Trump trial or investigation without a scorecard these days. There are dozens of them.
Regardless of what you think of him, you’d think that courts in Washington, Florida, Georgia or New York would determine Trump’s ultimate legal fate.
Think again.
Let’s Be Civil
To start with, two upcoming New York City trials are both noteworthy.
The New York State Attorney General’s suit against him for massive financial fraud is set for October. She’s seeking a $250 million fine and to bar him, his family and his firm from doing business in the state that serves as his headquarters.
Following the favorable verdict for E. Jean Carroll in May, in which she won a $5 million judgement against Trump for sexual abuse and defamation, he verbally slammed her for her victory. This in turn will be a focus of her related $10 million defamation suit against him, which is slated for trial in January.
However, as civil lawsuits, the fraud and Carroll cases don’t carry that ultimate penalty of potential imprisonment. There’s even the possibility of Trump raising enough funds from his followers to at least partly offset his financial penalties if found liable. Nonetheless…
The Current Criminal Cases
A threat of incarceration faces the ex-president, through two current criminal indictments.
There’s the Stormy Daniels hush money prosecution, brought by the Manhattan District Attorney in connection with Trump paying the adult film star on the cusp of the 2016 election, in return for her not revealing their affair. It starts next March in New York City.
Then there’s the pending trial most in the news recently: U.S. Department of Justice Special Counsel Jack Smith’s national security documents case, which will be held in Florida at some point. The DOJ has charged Trump with lying about and otherwise obstructing the return to the U.S. Government of classified materials.
As the indictment states, those papers pertain to “defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to foreign attack.”
Furthermore, “The unauthorized disclosure of those classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.”
Not exactly bathroom reading, eh? Though that’s where Trump reportedly stored some such items.
But Wait! There’s More!
Finally (for now, at least), there are two additional investigations which quite possibly will see Trump indicted this year.
It appears increasingly probable that, within the next several months, Special Counsel Smith will charge Trump in Washington, D.C. for activities connected to the January 6th insurrection or various other kinds of electoral interference pertaining to the 2020 election.
The Fulton County District Attorney, in Georgia, is expected to announce in August a decision regarding whether and whom to indict regarding 2020 electoral interference, possibly including multi-state racketeering chargesrelated to Trump pushing for the selection of “alternative electors” who could have subverted the Electoral College vote.
How Many Trials Was That?
From four to very possibly six major trials loom in Trump’s future.
Nonetheless, none of them seem likely to determine Trump’s legal fate and accountability in the most fundamental manner possible: whether he goes to prison. That decision rests in the hands of another court. Here’s why.
As I’ve noted, prison isn’t an option in a civil trial.
The New York hush money case is nothing to scoff at. But it’s arguably the toughest criminal case to win against him, and the one least likely to get him imprisoned even if he’s found guilty.
Instead, what becomes of Trump could conceivably hinge on the national security, insurrection and electoral theft trials that could consume much of next year. But whether the ultimate outcomes of those cases will actually be decided in Florida, Washington or Georgia courtrooms is another matter.
There already are indications that the national security documents case could be pushed back until after Election Day 2024. For one thing, the Trump-friendly judge presiding over the trial simply could decide to finalize the date for then or otherwise stymie the prosecution. For another, special considerations regarding national security trials also could delay the proceedings. And of course, there are the delaying tactics that Trump attorneys exploit in any litigation involving him.
The complexity of the potential, election-related federal and Georgia prosecutions could also delay the prosecutions of Trump for those crimes.
But such considerations are not the fundamental reasons why the courts hearing those cases might not decide Trump’s fate, unless of course they find him not guilty. This, it must be emphasized, is certainly possible. Such a verdict could be a legitimate outcome in a given case, as much as some might think or wish otherwise. Or, in a less legitimate vein, it could prove more probable by virtue of rulings that the Trumpist judge in the Florida documents trial could make.
Democracy in Action
But let’s put aside the potential “not guilty” outcomes for now.
Rather, Trump’s dodging the legal bullets rests on his getting re-elected (or perhaps another Republican winning in 2024, and then doing Trump some very big favors). Here’s how:
- President Trump could in effect halt federal trials that haven’t started or been completed.
- He could pardon himself if convicted.
- He could similarly exert pressure to get a Georgia verdict in effect negated.
More specifically, Candidate Trump has made no secret of his plan to appoint an attorney general who will do his bidding, including halting a federal prosecution. If already convicted by the time he’s elected, he’ll seek to use his pardon power to spare himself.
Now, such scenarios are not a lock. Trump could of course lose the Republican nomination or the general election. A Democratic-controlled Senate could refuse to confirm his kind of compliant Attorney General, though that might only prove to be a stopgap measure. The Supreme Court could decide that a president can’t pardon himself. Many other twists and turns could take place.
Georgia on My Mind
But what about the potential Georgia case? It should be on our minds partly because the state prosecution there would not be controlled by the (potentially Trump-appointed) U.S. attorney general and a conviction there would not be subject to the possibility of a presidential pardon. But…
In May, Georgia’s governor signed into law the establishment of a commission with the power to remove local prosecutors who “refuse to uphold the law.” There also is the possibility that a different Georgia law could be amended by the Republican-dominated state government to allow for a speedy state pardon of Trump even if he’s convicted.
The Court That Counts
So, both federal and state prosecutions could conceivably be halted, or their convictions effectively negated.
Which brings me back to my original point. As crucial as the actual and potential Trump trials are, they probably won’t ultimately determine whether he goes to prison. As much as we yearn for the rule of law to trump politics, these crucial outcomes might not be the product of what judges and juries decide.
Rather, Trump’s legal future hinges on the November 2024 election, and on all of the intensity that will entail. That’s so sobering for a nation that prides itself on its rule of law, on no person being above the law and on justice being beyond vote counts.
In other words, the crucial verdicts regarding these profoundly serious charges will not be decided by courts in Washington, Florida, Georgia or New York.
The verdicts will be rendered by the court of public opinion.
This post was produced by Benicia resident Stephen Golub. Steve blogs about domestic and international politics and policy, including lessons that the United States can learn from other nations, at A Promised Land: America as a Developing Country. If interested, you may sign up for future posts by subscribing to the blog.
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