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After a few months in which not a lot happened, in recent days there have been some consequential developments in Donald Trump’s various criminal trials. At stake is whether the former president will face justice before the November 2024 presidential election, or whether he’ll be able to run for office on his platform of installing an American dictatorship.
It’s been clear for a long time that Trump isn’t really trying to defend himself in a conventional legal sense. He’s bang to rights in the documents case at least, and probably also in the January 6th cases. Rather than trying to prove otherwise, he’s adopted a strategy that is essentially political. By trying to delay his trials until right before or even after next year’s election, he hopes to make it politically impossible for the courts to serve him justice - or to allow him to pardon himself after he assumes office.
The political component of this strategy consists of throwing all sorts of accusations of bias at the justice system. By polarizing his supporters against it and convincing a chunk of the country that he’s the victim of political persecution, he hopes to intimidate the courts. He reasons that if faced with a catastrophic loss of legitimacy, the justice system might opt to back down. The legal part of his strategy aims at throwing up all sorts of procedural challenges in order to delay the trials and allow the political component time to work.
It’s this legal component which, in the past few days, has started to show signs of bearing fruit. Two separate developments are giving Trump hope of delaying his federal January 6th trial long enough to get off scot free.
Trump is facing so many different cases that it’s hard to keep track. The federal January 6th case is the one in which he is charged with conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing a congressional proceeding, and conspiring against the right of American citizens to have access to an equal and fair vote. It’s arguably the most important of all the cases he’s up against because it cuts most directly to his attempt to subvert and destroy America’s democratic process.
Alas, it’s getting complicated. Firstly, the Supreme Court has decided to take up a separate case which could end in the justices pre-emptively throwing out one of the charges Trump faces. The case revolves around the charge of obstructing an official proceeding. Although 327 January 6th defendants have already been charged under this statute for their assault on the Capitol, some legal commentators have argued that the law was never actually intended to cover anything apart from document tampering. This interpretation has been rejected in every previous January 6th case, but a Trump-appointed judge has finally and inevitably ruled that it is accurate and now the whole matter is headed to the Supreme Court. They might not make a decision until June.
Luckily, even if the justices decide to embrace the more narrow interpretation of the statute, the other charges Trump faces will still stand. But the convictions of scores of January 6th rioters could be overturned, which will greatly fuel the narrative that the Biden administration has been engaged in some sort of illegal witch hunt against Trump and his supporters. That, in turn, will increase the pressure on the criminal justice system to buckle in the other cases.
The second and potentially more serious complication stems from Trump’s claim that he has immunity from criminal prosecution because his actions on January 6th were part of his duties as president. This is a perverse, hideous claim - essentially saying that attempting to destroy American democracy can be considered part of any president’s regular job. But Trump is pursuing it anyway.
In the last few days, Special Counsel Jack Smith asked the Supreme Court to rule on the matter of immunity as quickly as possible. This has been praised in some quarters as a smart move because it means we won’t have to wait for the disagreement to wend its way up through lower courts before the Supreme Court steps in. But the process could still take a long time to play out, and meanwhile the judge in the January 6th case has placed all pre-trial preparations on hold - making it increasingly unlikely that the trial’s planned March 4th start will slip back.
Both of these developments mean that the January 6th case is entering a moment of maximum danger. The heavily Republican Supreme Court could decide in the coming weeks or months that Trump is immune from prosecution - essentially that he already is and always was an American dictator, bound by no law. Or it could avoid making such an inflammatory ruling and instead begin a lengthy, months-long process which ends in functionally the same result - Trump gets away with his criminality because the wheels of justice grind so slowly that they get overtaken by political events.
It can hardly be a comfort that this decision rests with a group of judges who are heavily embedded in the conservative movement, responsive to its narratives, and in many cases were appointed by Donald Trump. The fate of America and even - given Trump’s second-term plans - the world is in their hands. And all the rest of us can do is sit back and wait.