[Disclaimer: The majority of this article was written before the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s 2024 ballot, citing the “insurrectionist ban” of the 14th Amendment as justification for his ineligibility. Though this will, of course, now shape his electoral prospects and the narratives surrounding his legal endeavours, the outcomes of the four main legal cases detailed here still remain crucial to the future of US politics.]
Needing the last word as always, Donald Trump leaned into the microphone as the court adjourned for the New York civil fraud trial last month – never missing an opportunity to incite controversy: “This is a very unfair trial, very, very unfair, and I hope the public is watching.” Fortunately for the incessant former president, they have been. It should come to the surprise of nobody that Trump, ever the victim, would try to translate multiple indictments, stemming from dozens of felonies, into political capital. Prosecutors foresaw this, leaving the trials untelevised. Yet efforts to mitigate his raucous behaviour seemingly matter little with an election on the horizon, as recent polling has suggested that if the election were to take place today, incumbent Joe Biden would in fact lose by a margin of 292 electoral votes to 246. Trump, therefore, needs to do little other than sit back and face this supposedly “unjust” persecution.
Undoubtedly, this is a falsely fatalistic outlook. If his presidency told us anything, it is that Trump will be unable to sit tight – especially with Hunter Biden facing a second federal indictment, this time for Californian tax charges. Familial wrongdoing is hardly new in US politics, and hardly as unprecedented as a former president being criminally charged – for the first time in history, notably. As such, there are no constitutional mechanisms to prevent those with criminal records running for president, the Founding Fathers not envisioning a felon in the White House. There is little his opponents can do legislatively. Though states may try and require a clean criminal record to run, this would be on “legally shaky ground”. Law Professor Sanford Levinson suggested the best constitutional reading was one which prevented states adding “new substantive requirements” – as seen in California after district judges blocked a law requiring the release of candidates’ tax returns to appear on primary ballots in 2019. Subsequent attempts to invoke Section 3 of the 14th Amendment, which prohibits oath-takers who “engaged in insurrection” from taking public office, are equally futile; a conservative Supreme Court would likely throw these out.
Ron DeSantis (nicknamed “Ron Desanctimonious” by Trump) would have to petition Trump’s clemency, adding to the absurdity of his candidacy
This is where the Colorado decision is of interest. One would predict that in the face of an inevitable appeal by Trump at the federal Supreme Court level, the decision will be overturned. Political biases aside (all seven justices who made the Colorado 4-3 ruling were appointed by Democratic governors, and of the 6-3 conservative supermajority on the Supreme Court, three judges were appointed by Trump himself), whether Trump actually incited insurrection is the subject of a legal trial yet to be concluded in a court of law. With the decision now catalysing “new substantive requirements” in the national electoral process, it may have little legal leeway; the Supreme Court hearing will likely note how the Amendment has historically been considered too “vague” to enact such sweeping requirements.
Nonetheless, both arguments will be heard, and with intensive media coverage we may see many twists occur. Ironically, if convicted, he may not be able to vote. This would be decided by rival and Florida governor: Ron DeSantis (nicknamed “Ron Desanctimonious” by Trump). DeSantis would have to petition his clemency alongside two state cabinet members, adding to the absurdity of his candidacy.
Whether the judicial outcome holds Trump to account in a satisfactorily punitive fashion remains to be seen. The defendant in four major cases, two are state-related – the first relating to his attempts to rescind Georgia’s 2020 election and the second being sparked by the alleged falsification of New York business records stemming from Stormy Daniels hush money payments. Legal experts have suggested that in spite of a four-year sentence for violating campaign finance law in the latter case, it is unlikely Trump will be jailed, instead facing a fine or probation. Georgia consequently becomes vital. The racketeering charges against Trump, which cite an alleged violation of Georgia’s RICO Act used to convict mob bosses, not only carry a 20-year sentence but are effectively president-proof. Although the federal cases surrounding Mar-a-Lago and Capitol Hill hold equally harsh jail sentences, it is increasingly plausible a Trump 2024 victory would see a MAGA attorney general shut these cases down. The Nixon-era 1973 Memo would be cited, with the Justice Department not indicting sitting presidents. However, Trump would lack the legal authority to similarly disrupt the Georgia case, as it pertains to state law. However, this does not necessarily imply the Georgia case will be straightforward. The attorney prosecuting the Georgia case, Fani Willis, will need to prove that Trump and his allies conspired to commit two or more offences, alongside getting the case to trial swiftly. The last case to be charged with 19 defendants, scheduling hell could ensue as each implicated individual (particularly the lawyers) will lodge their own challenges, slowing down the process to a bureaucratic sludge.
The outcome of the Trump trials will forever define the USA’s future global reputation
These tactics, however, will only delay the inevitable, with Trump’s legal defences looking increasingly fraught. Pleading ‘not guilty’ to all cases, his outright denial of wrongdoing (calling the Georgia phone call “perfect”) will not overcome the evidence gathered. Trump knows this, hence why the appeals court will be his friend in delaying a conviction. This opportunity to play on the electorate’s heartstrings is consequently why his lawyer, John Lauro, adopted the First Amendment argument, suggesting Trump was constitutionally protected by virtue of free speech to express electoral doubt and even incite insurrection, albeit “peacefully”. Of course, prosecutors denounced this as “absurd” – “speech integral to criminal conduct” is not protected by the First Amendment. Nonetheless, images of governmental infringement on one’s liberties may inherently resonate with the American identity. These bullish strategies are not wholly foolproof. Forming the crux of his federal defences, claims of targeted political conspiracy have been nullified legally and publicly by Hunter’s indictment and undermined by Trump attorney David Weiss. Federal Attorney General, Merrick Garland, can hardly be described as guilty of “political favouritism”, and neither can Special Counsel Jack Smith for ruling out a plea deal (politicising prosecution by allowing 2024 to become a bargaining tool). Not that this will matter to Trump. Thriving off hypocrisy and deflection, he will state why the same Justice Department, supposedly committing electoral conspiracy, is right to indict Hunter, whilst also proclaiming his innocence of the same crime in New York, with the Stormy Daniels payments supposedly “protecting his family” from false allegations.
Through all the muddied and uncharted legal waters, one thing is certain: Democrats will let their accomplishments, and a performative Trump, speak for themselves. The Biden campaign appear unfazed by the polling: a façade of quiet confidence being contrasted against bombastic MAGA ideology worked in 2020, and the forecasted Democrat losses in the 2022 midterms never truly came to fruition. Circumstances, of course, change. A recent New York Times/Siena poll signals acute observations that Democrats must be conscious of, as Trump leads Biden on the economy by a 59% to 37% margin. Although a long-term $1 trillion infrastructure bill has sought to benefit Rust- and Sun Belt voters by regenerating manufacturing, it is all too easy for Republicans to tap into short-term discontent towards food, energy, and mortgage prices by exporting blame to a ‘hapless’ current administration engaged in costly foreign wars. There are certainly more twists to come. Questions remain surrounding the candidates’ age and their ability to navigate a tumultuous 2024, and Trump’s legal dilemmas will continue to bleed his campaign finance apparatus, ‘Save America’, of the funds necessary to counter Democratic messaging. Threatening to seek “retribution” if re-elected, the outcome of the Trump trials will forever define the USA’s future global reputation. Ultimately, this is as much a democratic crisis as a legal one.