27 July 23
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The most powerful office in the nation presents his best chance to terminate the cases against him.
It will also be a referendum on whether Trump will ever be held legally accountable for his actions. Trump faces multiple civil suits and at least two criminal indictments (with two more seemingly just over the horizon). If Trump were to win reelection, it is almost certain that none of these will ever be resolved—at least not in a way that is adverse to his interests, which any reasonable system would admit as a possibility. Such is the power of the presidency.
Take the simplest cases first: his pending indictment in Florida for violations of the Espionage Act relating to the retention of classified documents, and his anticipated indictment for actions relating to the January 6 insurrection. If Trump is elected, neither of these cases will ever result in a final judgment of Trump’s guilt (much less incarceration).
The Mar-a-Lago documents case is set to go to trial in May 2024. Although many people suspect, not without foundation, that this trial date will slip, let us indulge the possibility that the trial occurs as scheduled and that sometime in June or July 2024, a jury convicts Trump. There is virtually no doubt that Trump would appeal such a verdict, and there is likewise almost no doubt that the presiding judge, Aileen Cannon, would allow him to remain free on appeal.
I have handled several criminal appeals in my career. None has ever been resolved, in even the simplest of cases, in less than a year. That’s just the way our appellate system works; there is no sense of urgency to the proceedings at all (nor, to be clear, should there be in the normal course of business—the trial has concluded and the record is complete; a mature and thoughtful review of those proceedings requires time). The result is that Trump’s appeal of his federal conviction (assuming one is secured) will quite likely still be pending before the Eleventh Circuit, the court with appellate jurisdiction over federal trials in Florida, at least through mid-2025—well past the election and into the next presidential term. And even were an appeal to be concluded quickly, Trump would inevitably then petition the Supreme Court for review, taking yet more time.
A similar calendar will apply to the possible January 6–related charges that may soon be brought by the special counsel in Washington, D.C. Even if that trial were to occur more quickly than the one in Florida (say, for example, in March or April of next year—a big if, given that the federal courts would have to negotiate an efficient trial that does not conflict with the one scheduled for March in New York), the chances of an appeal to the D.C. Circuit, which has jurisdiction over the federal court in the nation’s capital, and thence to the Supreme Court in less than 10 months is near zero.
In short, it seems to me that no possibility exists that any of the federal charges against Trump will be final before January 20, 2025—none at all. And it seems equally certain that one of the very first acts of the Trump-appointed attorney general (whoever that may be) would be for the DOJ to move to dismiss the case or cases against the president at whatever stage they are then pending. Put simply, if Trump wins reelection in November 2024, the federal cases against him will likely be terminated, without final resolution, within 24 hours of his inauguration. That doesn’t mean these proceedings will have been worthless. If Trump has been convicted in either trial, America will have the benefit of a historical record that determines his criminality. But that will be little comfort as we endure another four years of his rule, and as he continues to avoid any semblance of actual accountability.
The situation is more complex when we turn to the state charges Trump faces in a case already pending in New York and another anticipated shortly in Georgia. By definition (at least insofar as the Constitution is concerned), those states are separate sovereigns, and the federal government under Trump cannot direct that those cases against him be dismissed—nor could Trump pardon himself for his state crimes, because his pardon power is, likewise, limited to federal matters. So those cases will proceed.
But boy will they be difficult to bring to resolution.
To begin with, we can count on the Trump-led DOJ arguing that a sitting president is immune from prosecution by a state, at least during his time in office. And their claim will have some merit. After all, if the New York and Georgia district attorneys can try Trump while he is in office, the prospect exists that any elected official in a state opposed to the president might use his or her power to go after the president on local criminal charges. What’s to stop an elected Republican prosecutor in a very red state from bringing bogus charges against President Joe Biden?
The risk is more than hypothetical. We have already seen how elected attorneys general are using their powers in ever more politicized ways. The leap from “justified” prosecutions to “unjustified” ones lies mostly in the eyes of the beholder. That’s why, more than 50 years ago, the Watergate special prosecutor’s office actually sided with the president on this score, stating that “considerations of federalism would bar his indictment in state court.” Nothing in the text of the Constitution prohibits state prosecution of the chief executive, but nothing authorizes it either, so the question has never been definitively resolved. But if Trump is elected, we can be sure that it will be—and what this Supreme Court would decide is anyone’s guess.
Nor is that the only legal hurdle that the state prosecutors will need to overcome. Trump’s efforts to have his New York prosecution moved to federal court have thus far been rejected, as have the federal government’s efforts to replace Trump in some of the civil suits against him. Those arguments will, however, have substantially greater force if Trump returns to office; his status as a federal official and the disruption to governmental activity that would arise from his personal liability to civil suit would become significantly more palpable. The Trump-appointed AG would be all but sure to press them in court to the maximum extent possible.
Other challenges may be less legal and more practical in nature. Were New York and Georgia to persist in their cases, the nature of Trump’s retaliation would be limited only by his imagination. What, for example, would happen if he tried to pull federal-law-enforcement funding from those two states? What if he directed the FBI to withdraw from cooperative investigative efforts? What if, in Republican-led Georgia, he pressured the state legislature to pass laws limiting the power of the Atlanta DA or requiring her to dismiss the case? The country should not have to answer these questions.
The prospect that Trump will almost certainly avoid accountability for his criminal conduct if he is reelected is just a small subset of the broader threat he poses to the rule of law. But it is an emblematic possibility redolent with the odor of kingly prerogative. Sadly, the reality is clear: When Americans go to the polls in 2024, if Trump is a candidate, they will not simply be choosing between two political alternatives; they will also be making one of the most important choices in the history of the country. They will be choosing between the modern conviction that no man is above the law and a return to a time when political leaders could act with impunity. Our own national character rests on what choice we make.
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