Since he started in business in 1973, Donald Trump has sought to discredit the American justice system. He learned how to do it at the feet of the master, the disgraced lawyer Roy Cohn. “He doesn’t see the legal system as a means of obtaining justice for all,” I wrote in my book, “Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits.” He sees it rather as a weapon in his arsenal to command attention and ultimately power.
The most effective tools in Trump’s bag of tricks are delay and distraction. He understands that the wheels of justice grind slowly. Today, charged with 91 felony counts in four courts around the country, he has succeeded in grinding justice to a halt.
His most important trial is before Judge Tanya Chutkan in the District of Columbia, arising out of his conspiracy to overturn the 2020 presidential election, which matured on January 6, 2021. Things were going swimmingly for the government in that case. Trial was set for March 4, the day before the “Super Tuesday” primaries.
Then Trump moved to dismiss the indictment on the ground that he had immunity from criminal prosecution for everything he did in office. Judge Chutkan promptly denied the motion on the principal basis that trying to overturn an election to stay in office featuring fake elector schemes, a violent storming of the Capitol designed to interrupt the electoral count, and threatening his own vice president were not within the scope, not even the penumbra, of presidential duties. Quite the contrary, the president takes an oath to “faithfully execute the laws,” and that would include bowing to the peaceful transfer of power.
Trump immediately took an appeal to the D.C. Circuit. The appeal triggered an automatic stay of the trial.
The appellate court put the appeal on a “rocket docket,” holding oral argument on Jan. 9. At the argument, the judges seemed skeptical of Trump’s claim that a president has blanket immunity from criminal prosecution after leaving office unless he is first impeached and convicted by the Congress of “high crimes and misdemeanors,” a fate he evaded by the skin of his teeth.
Trump’s lawyer even argued in open court that a president could use Navy SEALs to assassinate a political enemy, and do so with impunity if he somehow escaped impeachment.
The D.C. Circuit, while apparently skeptical of Trump oral argument, is considering this outrageous submission, among others, and has yet to reach a decision. Meanwhile, the clock is ticking, and the case has been marked off the trial calendar. Even if the circuit decides the issue against Trump, there will be an appeal to the Supreme Court, and of course further delay.
The open-and-shut case against Trump is the one in the Florida federal court involving the mishandling of classified documents, the subject of a grand jury subpoena. Special Counsel Jack Smith unfortunately drew the Honorable Aileen Cannon as the trial judge. Cannon, a Trump appointee, had no experience with cases involving classified documents and has been rebuked twice by the appellate court for erroneous decisions with pro-Trump outcomes.
The documents case is proceeding at a pace that would make a snail look like an Olympic sprinter. Although Cannon has set a nominal trial date of Aug. 14, the case is bogged down in discovery, and it is highly unlikely that the public will see a trial before the election.
Then there is the state RICO case against Trump in Fulton County, Georgia, brought by District Attorney Fani Willis. That case has devolved into a soap opera sideshow because Willis admitted to having an affair with a senior prosecutor on her staff. The indiscretion would seem irrelevant to the merits, but the judge appears to believe the allegations are serious enough to warrant a hearing. Meanwhile, the clock is ticking. More delay.
This leaves the election interference case in New York with trial set for March 25, three weeks after Super Tuesday, unless it is also delayed. According to the indictment, Trump falsified business records shortly before the 2016 presidential election to conceal payments of hush money to porn star Stormy Daniels, who was threatening to go public about their extramarital affair.
A clumsily concealed payoff to a porn star to conceal an extramarital dalliance? Giant clams or small potatoes? The prosecution of a former president should be made of sterner stuff. But this is apparently the only case with any prospect of getting to trial before the election.
What is troubling is that Trump posted a message on social media that he expected to be arrested on the charge, and called on his followers “to take our nation back.” He fired up his base, characterizing District Attorney Alvin Bragg as “an animal,” carrying out the “plans of radical left lunatics.” Fortunately, the protests were minor in nature. Trump has repeatedly undermined the rule of law to elude accountability. Attacking a prosecutor personally just for bringing a case against him, regardless of the merits of the case, is a classic example of undermining the rule of law.
I used to have faith in our courts. After all, the judges are the keepers of our sacred right to justice. I thought of the judges as largely fair and independent, applying the law as they saw it. Even when I disagreed with the disposition, I accepted it. Now I am not so sure.
“The law’s delay” has been a problem in the justice system since the time of Hamlet — Shakespeare saw it as one of the respects that makes “calamity of so long life.”
I get it that the president is supposed to be fairly and freely elected by the people, a proposition to which Trump takes exception. But the voters are entitled to know whether he has been convicted of any of the felony charges prosecutors have leveled against them. Some Americans may not want to put a convicted felon in the White House.
At least one poll shows Biden leading Trump nationally by six points, but other polls show Trump narrowly ahead, with many voters undecided. Voters may want to know whether Trump is a convicted felon — but if he is elected, face it, they will never know.
The justice system is supposed to work for the people. But in Trump’s case, it may not.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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