Trump Should Delay Criminal Trials Until After Election; Here’s How

The four criminal cases brought against former President Donald Trump represented both an extraordinary political danger and the very real threat that the Republican front-runner to run for the White House in 2024 would be convicted by multiple juries before the first round of voting.

What a difference a year has made – or, perhaps more accurately, hasn’t made.

With the Supreme Court’s presidential immunity ruling Monday likely to prevent a trial in the federal election subversion case before the election, Trump is poised to avoid pre-election trials in the three most significant criminal cases he faces.

He was convicted in the fourth. But the bribery case brought by the Manhattan district attorney was widely seen as the least serious and most tangential to the choice voters will make on Nov. 5, because it used a controversial legal theory to target conduct that has been publicly known for nearly a decade.

It is possible that he will not even receive prison time in the case.

And in a risky attempt, a source told CNN that Trump’s legal team filed a letter Monday seeking to challenge the former president’s New York conviction based on the high court’s ruling on presidential immunity.

“The sad thing is that of the four, it’s the one that feeds the narrative of Trump’s political persecution, which is tragic,” said Ty Cobb, who served as Trump’s White House lawyer during the special counsel’s Russia investigation but is now opposing his reelection.

“I think that [a narrativa de perseguição política]more than the conviction, will have a bigger effect on the election, which horrifies me,” Cobb said.

Americans will go to the polls this fall without a verdict on whether Trump violated federal and state laws by trying to overturn the 2020 election, or whether his hoarding of classified government documents after his presidency violated national security statutes.

The November election will not only select the country’s next leader. It will determine Trump’s legal fate. If elected, Trump is widely expected to make the federal charges against him disappear, either by ordering his attorney general to dismiss them or by pardoning himself.

Georgia’s election subversion case, meanwhile, is on hold while an appeals court considers an attempt to remove Fulton County District Attorney Fani Willis from the case, and the prosecution now faces other major hurdles.

“If Donald Trump wins the election, no criminal trial of his will ever go forward,” said Paul Rosenzweig, who worked on the Whitewater investigation into Bill Clinton and went on to serve as an official at the Department of Homeland Security.

“We cannot count on the criminal justice system to save us. The electoral system is what will ultimately determine how we fare.”

Several factors contributed to Trump’s apparent escape from criminal culpability before the election. The wheels of justice turn slowly, as the saying goes, but Trump has benefited from legal advantages and strokes of luck beyond the reach of any other defendant.

They included a well-funded legal strategy built around delays, mistakes by his opponents, an almost unbelievable coincidence in case assignments and now a Supreme Court ruling that will delay and undermine what was the main case against the former president.

“The law can very clearly be used as an instrument of justice and it can very clearly be used as an instrument of injustice,” said Rep. Jamie Raskin, the Maryland Democrat who led the House’s second impeachment team against Trump.

“Rules can be used to confuse everyone and dilute the moral clarity of a situation, or they can be used to illuminate the moral meaning of a situation,” Raskin told CNN in an interview last week.

Federal subversion case

Special Counsel Jack Smith’s charges alleging that Trump subverted the 2020 election represent the penultimate of four cases brought. They have broken significant legal ground and raised new and gravely important legal issues.

Yet it got off to a fast start — largely due to District Judge Tanya Chutkan’s zero tolerance for laziness — and by late last year it seemed likely to be the first to reach a jury, with a trial scheduled for March.

Smith tried to keep that momentum going last December, quickly taking to the Supreme Court the question he said needed to be decided before trial: whether the presidential immunity that Trump claimed protected him from prosecution.

But the Supreme Court did not agree with Smith’s plans, first refusing his request that the justices skip the usual appeals process that would first go to the U.S. District Court in the capital, Washington.

Once the appeals court issued its ruling rejecting Trump’s sweeping claims, the high court put the case on hold this spring so it could make its final decision.

The judges’ review of the case has halted preliminary proceedings for four months, and now Monday’s ruling is likely to add months more litigation before a jury hears the charges.

However, even some Trump critics defended the court’s handling of the matter, noting that by the high court’s standards, the dispute moved quickly.

“You can’t charge a former president with a crime for the first time in history without going to the Supreme Court,” Cobb said.

The court deserves some blame for the delay, according to Cobb, as its decision “was more of a death blow than a surgical assessment of the law.”

Chief Justice John Roberts’ majority opinion specifically pointed to the lack of “factual analysis” by lower courts to explain why another round of pretrial proceedings would be necessary.

More than just delaying the case, however, the Supreme Court’s decision will make the charges significantly more difficult to prove if the prosecution does reach a trial.

The conservative majority did so by ruling that alleged conduct determined to be an “official” presidential act is not only subject to immunity, but cannot be used as evidence to support charges targeting Trump’s unofficial conduct.

“Much of the evidence that Smith had that indicated the criminality of what Trump was trying to do has now been declared barred,” said Rosenzweig, who signed a friend-of-the-court brief opposing Trump’s arguments in the case.

Trump-appointed judge delays other case

Compared to his first election subversion case, Smith’s classified documents accusations against Trump were, in theory, a simpler and clearer indictment.

The allegations that Trump illegally withheld national defense information and then obstructed a federal investigation into the materials focus almost entirely on his conduct after leaving the White House.

And much of the case resembles lawsuits routinely brought by the Justice Department against government officials who mishandle the nation’s secrets.

But Smith had bad luck with the South Florida judge who received the case, drawing in a random lottery Aileen Cannon, a young and inexperienced Trump appointee.

She previously handled Trump’s lawsuit challenging the FBI’s search of Mar-a-Lago and was rebuked by a conservative appeals court for rulings that showed special treatment of the former president.

In the criminal case, Cannon took months to rule on pretrial disputes that legal experts say are not close cases. She dragged out the proceedings by demanding days of hearings on Trump’s unlikely arguments.

While she has so far rejected his efforts to dismiss the charges, she has hinted that she would let him put his absurd and legally dubious claims about the case before a jury.

Assuming Trump doesn’t become president and make the case disappear, it could be years before the charges come to trial. And Cannon’s questionable handling of the case makes a messy appeal almost guaranteed.

“Cannon’s performance is historically dismal for a federal judge,” Cobb said.

Georgia prosecutor’s mistake puts case in jeopardy

If Cannon’s appointment was an incredible moment of luck for Trump, then Willis’s unforced error of judgment was a godsend.

The case against Trump and 18 defendants for alleged interference in the 2020 election in Georgia is on indefinite hold while the Georgia Court of Appeals considers ethics allegations against the prosecutor over her romantic relationship with his vice president.

The appeals court could decide to disqualify Willis, a decision that sources at the CNN would effectively end the entire case.

Willis and her supporters say her affair with Nathan Wade, who served as her lead prosecutor, was not a violation of ethical standards. However, it may have cost her the prosecution, and even those who applauded her case say she should have exercised better judgment, given the high stakes.

This is the only case in which the likely Republican nominee could not pardon himself, even if reelected.

After the trial judge said Willis could stay on the case while Wade was fired, the defendants appealed the ruling and obtained a stay of prosecution while the appeal played out — a process that could take many months and that effectively ensured the case would not go to trial before the November election.

The consequences of Willis’s own actions — coupled with the Supreme Court’s ruling on immunity — could mean that Trump will never be tried in Fulton County, regardless of whether he wins the 2024 election.

If and when the trial court proceedings are allowed to resume, the trial judge, Scott McAfee of Fulton County, will have to undergo the same analysis on presidential immunity that the U.S. Supreme Court is requiring in the federal election subversion case.

This will likely greatly undermine the way the case was put together, according to the analyst. CNN Michael Moore, pointing to Georgia’s anti-racketeering law, which is the basis of the indictment.

“The usual benefit of this prosecution is that each defendant can be held accountable for the bad acts of his or her co-defendants,” said Moore, who was the U.S. attorney in Georgia under President Barack Obama. But the Supreme Court’s new immunity standard jeopardizes the use of much of that conduct in the case.

“I think the case is probably lost as far as Trump is concerned,” Moore said.

(Kara Scannell, Lauren Fox and Zachary Cohen, from CNN contributed to this report)