Delay, then win the election
The key trial is going in Trump’s favor
By Roland Peters, New York
April 28, 2024, 5:03 a.m
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There are a number of charges against former President Trump. But the Supreme Court is dealing with the crucial question. It is becoming increasingly clear why Trump really wants to go back to the White House.
Four years ago, Donald Trump knew about the importance of the judiciary for his future. “I think this election will end at the Supreme Court,” he said in September 2020. The then US President spoke about the alleged “fraud by the Democrats” with which they wanted to help their opponent Joe Biden win a few weeks later. Trump wasn’t entirely wrong, the election actually ended up in the Supreme Court. But for different reasons than he predicted.
The Supreme Court is concerned with the questions that Trump raised through his behavior from the time he lost the election until it was certified in the Capitol on January 6, 2021. The Department of Justice in Washington and the public prosecutor in the state of Georgia therefore indicted him. The general accusation is that he wanted to stay in power through illegal means despite the defeat. In another indictment, he is accused of illegal possession of secret documents after the end of his presidency. Trump’s lawyers counter this legally: They are demanding immunity for their client.
Can former presidents be prosecuted for things they did while in office? Most lawyers have so far assumed yes. The reason for this was the Richard Nixon case aka Watergate scandal. The Republican US President tried to sabotage the opposition Democrats in the 1972 election year. Nixon won, but was later exposed. Before Congress could complete impeachment proceedings against the president, Nixon resigned in 1974. His deputy, Gerald Ford, was sworn in again on the same day. A short time later, Ford issued a pardon that protected Nixon from prosecution for actions taken during his time in office. If ex-presidents also had immunity, this would not have been necessary.
So much for the historical logic that is now being renegotiated. Because of the designated presidential candidate Trump, the “yes” vote is shaky and the Supreme Court has to decide what happens next. The special investigator in the Justice Department began the trial of Trump’s attempted election fraud in March so that, ideally, there would be a verdict before the election in November. But Trump’s team has something against it, they are trying to save the designated presidential candidate to the finish line: the White House. Because there, that much is certain, he would be much more legally protected.
Carte blanche for crimes?
On Thursday there was a three-hour hearing with Trump’s lawyer and one of the prosecutors about possible immunity. Neil Gorsuch, a moderate conservative among the chief justices, stepped on the brakes. “We are writing a regulation for eternity,” he said. “I’m not concerned about the current case, but about the future use of the criminal law to target political opponents based on suspected motives.” He obviously doesn’t want to rush into a decision.
In doing so, Gorsuch also expressed what other conservatives warn about: without immunity, presidents would no longer be able to make decisions freely after the end of their term in office or lead the country as before. They could be under constant threat of future prosecution from political rivals or foreign actors. The other side fears an opposite dynamic in the case of guaranteed impunity. If presidents no longer have to answer for anything, the White House could become a “seat of crime,” said liberal judge Ketanji Jackson.
At the hearing, the conservative justices raised particular questions about the difference between acting as a president and as a private citizen. A majority, including the plaintiff’s attorney, seemed to agree that certain actions needed to be protected from prosecution. Possible judgments are already emerging. It is expected at the end of June or beginning of July.
The Supreme Court has a clearly conservative side. Three justices were nominated by Trump and joined others of similar minds. Only three are significantly more liberal. In view of the questions, possible tendencies for a judgment can be recognized. It is both unlikely that Trump and past and future ex-presidents will be deemed completely immune and that they can be dragged to court for any conduct. For all the legal problems plaguing Trump, the most obvious solution of all lies in the Supreme Court.
Time plays into Trump’s hands
It comes down to a middle path, but it must first be defined and then pursued. The Supreme Court could send the case back to a lower court to define which actions are not prosecutable and which are. In the past, Trump’s defense went so far as to say that as president, their client could also order the murder of a political opponent. On Thursday she said a military coup coordinated by the incumbent to remove a suspected corrupt politician from the presidency could be allowed under certain circumstances.
All of these considerations will take time, which will play into Trump’s hands. But for that to happen, the Republican would have to win the election. The trials probably won’t start before then, and even if they do, Trump could end the investigation against him in a flash after he’s sworn in again. The public prosecutor’s office is part of the Ministry of Justice. However, if Trump loses, the prosecutors would no longer have any time pressure.
The hush money trial in New York, in which Trump is currently in the courtroom almost every day, could also play a role in the election. Currently, 76 percent of his voters say they will continue to support Trump despite being convicted of a felony. The other 24 percent said they would consider moving on from him. That’s about 12 percent of all registered US voters. Even if this proportion gets smaller, it can make the difference in a tight race.
A trend has also been observed in recent weeks. In the poll battle between Trump, Biden and the independent Robert F. Kennedy, voters are currently switching from Kennedy to the Democrat. Trump is currently still ahead in the election-deciding states, but there is a stalemate with Biden across the country. Voters will also likely decide in November what is more important to them: Do they want to get rid of the current president? Or would they rather Trump have to answer for himself?