The End of the Trump Prosecutions
Four criminal cases. One
sentencing. A whole lot of justice denied.
Jan 13, 2025
18
AS DONALD TRUMP’S RETURN
TO THE PRESIDENCY draws near, all four criminal cases against him are going out
not with a bang but with a whimper.
The federal case
relating to Trump’s mishandling of classified documents was stuck in an appeals
court after the trial judge, Aileen Cannon, tossed it out last summer on
specious grounds. The other federal case, arising from the 2020 election
aftermath and January 6th, had been slowed to a halt by various procedural
motions. But after Trump won November’s election, Special Counsel Jack
Smith asked the courts to dismiss both cases.
Smith last week submitted his required final report on the cases, and while
it remains unclear whether the report will be
published, Smith’s work is done, and he has quietly resigned from the Department of
Justice.
The Georgia prosecution
of Trump for his actions following the 2020 election, which never moved at more
than a snail’s pace, came to a standstill last year when Trump’s
co-defendants challenged the participation in the case of
Fulton County District Attorney Fani Willis because of a personal relationship
she had had with a colleague. Last month, an appeals court removed Willis from
the case, and unless her effort to appeal her removal succeeds, the case will
probably be over. In theory, another prosecutor could be appointed, but given the fact that Trump
will be the sitting president, it’s more likely to end here.
Only one of the four
criminal cases against Trump ever reached the trial stage, the Manhattan
hush-money case. It culminated on Friday, when New York Justice Juan Merchan
sentenced Donald Trump to an “unconditional discharge” following the May 2024
jury verdict finding him guilty of 34 felony charges. Merchan called it the “only
lawful sentence” available to protect “the office of the president . . . not
the occupant of the office.” The ruling was tightrope-walking at its finest.
Merchan held firmly to the jury verdict—a triumph given Trump’s unique ability
to outmaneuver the rule of law—while also acknowledging that the defendant is
days away from assuming the highest office of the land.
Since Merchan made
public his plans to impose a slap on the wrist, there’s been a lot of chatter about how Trump got off
“penalty-free.” But this saga’s finale did accomplish some things.
Given his track record
of judicial wins, it’s kind of amazing that Trump did not evade sentencing
altogether. His lawyers had argued in multiple courts—including in the U.S.
Supreme Court—that a stay of sentencing was necessary in light of his
presidential victory. They also argued that the verdict was tainted because
evidence presented to the jury at trial included “official acts” under the
criminal immunity test created in Trump v. U.S.
In a 5–4 ruling on Thursday, with Chief Justice
John Roberts and Justice Amy Coney Barrett joining the progressives in the
majority, the Court denied Trump’s application for a stay. Its brief order reasoned
that he could raise his “official acts” arguments in his routine appeal of the
conviction. (Now that the sentence has been handed down, the clock for that
appeal is ticking.)
The Court also stated
that “the burden that sentencing will impose on the President-Elect’s
responsibilities is relatively insubstantial in light of the trial court’s
stated intent to impose a sentence of ‘unconditional discharge’ after a brief
virtual hearing.” This phrase is a doozy.
By signaling that he
would not impose any meaningful sentence on Trump, Merchan dodged a Supreme
Court stay. Recall that the immunity decision in Trump v. U.S. was
premised in part on the notion that presidents need free rein to make hard
decisions, unencumbered by the potential threat of criminal prosecution down
the road, which could chill their ability to exercise the kind of discretion
needed to be effective. Had Trump managed to delay sentencing until after
January 20, his posture as a sitting president undoubtedly would have prompted
a different outcome in the Supreme Court—meaning a stay of at least four years,
after which it’s hard to imagine the Manhattan hush money case resuscitating in
any meaningful way.
The brief order also
stands as a teensy legal constraint on the scope of immunity ruling: We now
know that presidents-elect don’t qualify. It’s better than nothing.
The unconditional
discharge also means that, unless the conviction is reversed on appeal, Trump
will live out his days with a 34-count felony record. (Presidents cannot pardon
state or local crimes, so that won’t help him.) Although a handful of states ban
convicted felons from voting, Trump’s places of residency—Florida and New York—are no longer among them, at least for
the types of crimes on his record.
It’s true that a felony record can prevent individuals from
entering certain countries and restrict their access to gun possession, and
there’s no bar on employers requiring disclosure of felony convictions on a job
application. But all this is, of course, beside the point for presidents—they
don’t even undergo standard background checks for government security
clearances. As for firearms possession, Trump will soon have control of federal
law enforcement and the military at his fingertips.
There’s irony in this
case being the only of the four criminal indictments of Trump to reach a
verdict, as it was considered the weakest of the four, and even now some court-watchers continue to insist that
Manhattan District Attorney Alvin Bragg grossly overreached. It may be true, as
the critics suggest, that the notion that lying during a campaign constitutes
misconduct for which one should be held accountable seems downright quaint.
This is just one of the many ways that Trump has distorted the rule of law and
reshaped the foundational charter of American government. And he’s only getting
started.
