The Weekend Wrap: July 28, 2024

The rule of law is on the ballot

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

It’s been a pretty quiet week for this space, as the political news overshadowed the legal. The DA in New York filed his opposition to Trump’s motion to dismiss based on presidential immunity, and the 11th Circuit officially docketed Jack Smith’s appeal of Judge Cannon’s dismissal of the Florida case and set a briefing schedule. I’ll have more to say about those developments in future weeks.

I don’t usually do politics here on Sidebars. But in the presidential election this fall, the political and legal worlds overlap in some significant and unprecedented ways.

Kamala Harris (The White House/Lawrence Jackson)

Simply put, the single biggest determinant of whether Donald Trump will ever be held responsible for crimes related to his efforts to overturn the last election, his mishandling of classified information, and his obstruction of justice will be the outcome of this presidential election.

Other than the New York prosecution (which involves crimes that took place before he was president), Trump’s strategy of delay in his criminal cases has worked. That’s been due to a combination of sympathetic judges/justices, the delays inherent in the criminal justice system, and pure dumb luck (such as the Florida case ending up randomly assigned to Judge Cannon). As a result, none of the remaining three prosecutions — Florida, D.C., and Georgia — will go to trial before the election.

If Kamala Harris wins the election, the federal cases in D.C. and Florida ultimately should be able to proceed to a verdict. Judge Cannon’s recent ruling that the appointment of a special counsel is unconstitutional will probably be reversed on appeal. Even if it isn’t, the same charges can be re-filed by the U.S. Attorney for the Southern District of Florida — the statute of limitations won’t run until 2026 or 2027. Cannon could still try to find other ways to sabotage the prosecution and could potentially be successful, but if she does something outrageous enough prosecutors will seek to have her taken off the case.

In D.C., Judge Chutkan, a very smart and capable judge, will eventually sort out what remains of the case following the Supreme Court’s immunity decision. It seems almost certain there will still be enough admissible evidence to allow those charges to proceed. There may be some more intermediate appeals and further delays, but there should be a trial in the end. That case provides the best opportunity to hold Trump accountable for his efforts to overturn the 2020 election.

The Georgia state case, which also focuses on the events leading up to and on January 6, is bogged down for other reasons, including its unwieldy size and the appeals of the motion to disqualify DA Fani Willis for a conflict of interest. That case might be able to proceed eventually, although if Willis is disqualified it could be in limbo for a long time or end up reassigned to a DA less interested in pursuing it. The DA’s self-inflicted wounds have turned what looked like a promising prosecution into a quagmire. Overall I’m not optimistic about that case ever making it to trial.

In the New York case, sentencing is set for September 18. Whether or not Judge Merchan imposes a prison term, the execution of any sentence will likely be postponed while Trump appeals. But if he is not the president, those appeals can run their ordinary course. If the convictions are affirmed the sentence can be carried out.

Under a new Democratic administration and Attorney General, that’s what we can expect in the Trump criminal prosecutions. None of it will be very fast, but that’s the nature of these complex white collar cases, particularly ones that raise all the novel issues associated with prosecuting a former president. But in the end the federal cases at least should proceed and a jury will decide Trump’s culpability.

If Trump wins the election, the picture is very different. He will order his Justice Department to drop the federal prosecutions in D.C. and Florida, and there will be nothing to stop him. That will be the end of those cases; the statute of limitations will prevent them from being filed again after he leaves office. Trump also has threatened to use his Justice Department to pursue Biden, his family, and other political opponents — for what alleged crimes is never made clear, but that does not appear to be important.

As for Georgia, at a minimum Trump will likely be able to get any trial postponed until after he leaves office in 2029. There’s no precedent for it, but federal courts would almost certainly intervene to hold that a state may not put a sitting president on trial. By 2029 who knows where the case will stand or whether there will be any appetite to pursue it.

In New York, even if Judge Merchan were to sentence Trump to prison, execution of that sentence would undoubtedly be postponed until he left office and while Trump pursues his appeals. Again, the federal courts are not going to allow a state to jail a sitting president even if the convictions are upheld.

In short, if Trump wins the election he will almost certainly succeed in avoiding any true accountability for the four criminal cases against him. We’ve never before faced a situation where a criminal defendant potentially would be in a position to order that his own prosecutions be terminated. If you want a definition of what it means to be above the law, that’s a pretty good one.

Of course there are many policy reasons that might cause someone to vote Republican or Democratic. But historically there were certain background principles and norms on which both parties generally agreed. One of those was the fundamental importance of the rule of law: that no one is above the law and that criminal justice and accountability do not depend on politics. That consensus no longer exists, as Trump and his supporters openly talk of using the justice system for political purposes and retribution.

Whatever our policy differences, I hope enough voters will follow the lead of the Republican former Lt. Governor of Georgia, Geoff Duncan, who endorsed Kamala Harris for president: “This November, I am voting for a decent person I disagree with on policy over a convicted felon without a moral compass.”

Trump supporters claim that it was the Biden administration that abandoned these fundamental principles by “weaponizing” the justice system to indict Trump. I reject those claims. It’s true we have never indicted a former president before. It’s also true there was never a former president who sought to overturn an election and prevent the peaceful transfer of power, or who willfully retained scores of classified documents and sought to obstruct their lawful return. Unprecedented crimes lead to unprecedented prosecutions. The charges against Trump are not a rejection of the rule of law but its manifestation: evidence that no one, including a former president, is above the law.

We’ve never had an election where what’s on the ballot are not simply policy differences but the nature of the justice system itself. I’m not one to be melodramatic, but this is profoundly important and frightening. Do we still live in a country where everyone is subject to the law, regardless of their politics or position, and must face consequences for their criminal acts? Or will we live in a more authoritarian system where leaders can place themselves above the law, avoid criminal consequences for their actions, and use the justice system to persecute political opponents?

The Supreme Court’s profoundly misguided decision on presidential immunity has already helped to set the stage and make it easier for a president who would seek to lead such an authoritarian regime. There’s good reason Justice Sotomayor concluded her opinion in that case by saying, “With fear for our democracy, I dissent.” I fear for our democracy as well.

With the shakeup in the presidential race last week, the contrast between the two candidates could not be more stark. Harris is a former prosecutor. A good prosecutor’s prime directive is to protect the rule of law; to ensure that the law is enforced without fear or favor, that the guilty are punished while the innocent are protected. Trump is a convicted felon facing three additional felony indictments. He has shown no qualms about using the justice system for his own personal and political gain — to punish his enemies and remain in power while avoiding accountability. They are facing off in a metaphorical courtroom where the future of the rule of law itself is on trial.

The voters will render their verdict in November.

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