Understandably, many Americans are frustrated by the interminable delays in four-times-indicted former president Donald Trump’s criminal trials and enforcement of New York’s massive civil judgment for fraudulent valuation of his properties. Trump can pay for a fleet of lawyers to file every imaginable defense and appeal. Certainly, the average criminal defendant would not enjoy “luxuries” such as the freedom to bad-mouth judges, prosecutors and court personnel practically without consequence, as Trump has.
The latest Trump break: The New York appellate court reduced from $464 million to $175 million the bond required while he appeals the New York civil case, although the judge-assigned monitor and ban on borrowing from New York banks stand. Trump was given 10 days to come up with the money. (He did not completely rule out accepting foreign funds.) Nevertheless, after he exhausts his appeals, Trump almost certainly will eventually be liable for a sizable judgment.
On the criminal side, Trump’s lawyers have thrown up one frivolous defense after another. In the federal classified documents case proceeding in Florida, Trump has been effective in slowing the wheels of justice almost to a halt, because Judge Aileen M. Cannon — who he appointed, remember — keeps entertaining frivolous arguments. Worse, she has demanded briefing, held oral arguments and then refused to rule. Unless the U.S. Court of Appeals for the 11th Circuit intervenes, the case might take months to reach trial. Worse, once a jury is impaneled, a misguided ruling from Cannon could result in acquittal, leaving prosecutors no recourse. In the end, it’s not impossible to imagine that Trump might avoid responsibility for an egregious national security breach and obstruction of the investigation. That would be the essence of a “two-tiered” justice system.
In the criminal election-subversion case in Fulton County, Ga., Trump and his cronies have had mixed success. District Attorney Fani T. Willis (D) survived a specious recusal claim, which nevertheless chewed up time. (Most defendants would not have had the resources or nerve to mount such an effort.) Willis will request an August trial date, but it is doubtful a case this sprawling would get to trial so soon. Sure, Trump could well face a jury in 2025 — provided he does not get elected.
On to the federal Jan. 6, 2021, case: Despite the Supreme Court’s leisurely pace, its decision on Trump’s claim of absolute immunity will come in June at the latest. Few legal observers expect the high court to give presidents carte blanche to commit crimes in office. Special counsel Jack Smith could then push to go to trial in the fall. Just Security co-founder Ryan Goodman and former prosecutor Andrew Weissmann argue that the trial court’s timetable “in a case whose facts and substantial evidence were already available to the defendant, was longer than deadlines set all around the country.” In the interests of an expeditious trial to ensure that the government, defendant and voters get a timely verdict, Smith could seek to press for a start date as early as practicable. (“Even when the accused is seeking to delay his day in court, that ‘does not alter the prosecutor’s obligation to see to it that the case is brought on for trial,’ as the Supreme Court has well articulated.”)
So to the surprise of many pundits, Manhattan District Attorney Alvin Bragg’s state prosecution alleging falsification of business records has withstood Trump’s antics better than the others. Justice Juan Merchan has demonstrated what equal justice under the law really means. He rejected Trump’s baseless immunity claims and attempt to block probative evidence; he disallowed Trump’s specious defenses such as “advice of counsel.” Likewise, he showed little patience with last-minute excuses and nongermane arguments during Monday’s hearing on thousands of documents that Southern District of New York federal prosecutors belatedly released, scolding Trump’s counsel for waiting so long to subpoena the documents. Merchan observed, “The People went so far above and beyond what they were required to do that it’s odd that we’re even here.” He then ordered the trial to proceed on April 15.
Then to top it off, Merchan “imposed a gag order Tuesday that prohibits [Trump] from attacking witnesses, prosecutors and jurors, the latest effort to rein in the former president’s wrathful rhetoric about his legal opponents,” the New York Times reported. Among the provisions of the order: “Any comments whatsoever about jurors are banned as well, the judge ruled, citing an array of hostile remarks Mr. Trump has made about grand jurors, prosecutors and others,” the Times report said.
In sum, some Trump cases will likely get pushed beyond the election. He might even wriggle out of the Mar-a-Lago documents charges. The New York civil judgment against him could get reduced. Less-wealthy defendants would not get such breaks. However, with tough-minded judges doing their jobs in the D.C. court and in Manhattan, plus major civil judgments (including two in E. Jean Carroll’s favor) already in the bag, Trump will not escape justice entirely. In less than three weeks, he will face a jury in a criminal case — something he has sought to avoid for so long.
Only voters can spare Trump the consequences of his conduct — by electing him president again in November. That would be the true miscarriage of justice.