Over the course of the past year, the relationships between law, politics and justice in our contemporary democratic republic have been torn open. We’ve all witnessed firsthand how each of the criminal indictments of former President Donald Trump have struggled to be adjudicated in their respective jurisdictions.
In effect, these criminal cases have all demonstrated just how arbitrary and capricious the rule of law can be when subject to the decisions of unprincipled and unscrupulous jurists of the highest courts in the land. Or, more pointedly: When legal conflicts are resolved by corrupt political hacks trying to pass themselves off as neutral umpires calling balls and strikes as they interpret constitutional law, we’re in for some serious civic trouble.
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More than a year removed from the last of Trump’s four criminal indictments, one of these cases has gone to trial because of alleged or imagined procedural irregularities.
One might argue that in the interim, Trump’s criminal justice and substantive crimes have been hijacked from the American people by the Supreme Court, which this year granted Trump significant presidential immunity rights. You be the judge of whether the high court’s ruling came down for the primary purpose of making Trump’s alleged criminal wrongdoing disappear.
In fact, it is now quite likely that Trump’s three pending criminal cases and straightforward violations of the criminal law will never go to trial.
Say even one or more of these remaining cases eventually finds their way to trial. And say that Trump is found guilty of felonies.
That may very well not be the final resolution of these matters as we have learned from Trump’s Manhattan hush money case. This is because an anti-democratic alliance of Boss Trump, the GOP and the MAGA majority of the Supreme Court has worked to ensure that justice for Trump is delayed indefinitely, no matter the evidence against him and no matter what a jury of his peers determines.
Anyone who believes no president is above the law should recoil: The Supreme Court’s ruling in favor of presidential immunity — and against the Constitution in order to protect the insurrectionary and treasonous behavior of Trump — is to date the most radical expression of weaponizing the law this nation has seen in decades. Or beyond.
At this point in time, only the first of these criminal indictments has gone the distance and was decided by a jury of Trump’s peers — or so we thought.
After a New York jury this past spring issued guilty verdicts on each of Trump’s 34 falsification of business records counts — each stemming from his interfering in the 2016 presidential election by paying hush money to a porn star with whom he allegedly had an affair — I more than suggested that “Justice delayed is not always justice denied.”
Boy was I wrong.
At the end of the 2023-24 Supreme Court term, the MAGA majority of justices had ruled to the surprise of virtually every knowledgeable person on Earth that Trump enjoyed presidential immunity from criminal prosecution whether he committed his offenses during, after or even before his presidency.
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Who knew? Certainly not the authors of the Declaration of Independence or the fathers of the U.S. Constitution – the only “originalists” if there ever were any.
As a result of this “unconstitutional” decision, Trump’s scheduled sentencing for July 11 was delayed until September 18 — after the earliest of early voting ballots will have already been cast in the 2024 presidential election.
In the wake of the Supreme Court ruling on presidential immunity, Trump’s “lawyers are urging the judge in the New York hush money case to overturn his conviction and dismiss the case.” In addition to other legal arguments, Manhattan District Attorney Alvin Bragg has responded that the immunity ruling has “no bearing on this prosecution” because the lawsuit was about conduct and events that occurred before Trump became president.
Even if Trump’s lawyers are correct about this new law after the crime, the case should still be immune from the decision. Just as a person cannot face criminal punishment except for an act that was criminalized by law before the act was performed – the principle known as “no crime without a law” — a person should not be exonerated or exempt from criminal punishment because of a “new law after the crime.”
Judge Juan Merchan has told the parties that he will issue his decision by Sept. 6. I am confident that he will rule against Trump and that sentencing should be on schedule for Sept. 18. However, I am also confident that Trump’s legal team will appeal that decision. And, even if that appeal does not delay sentencing, Trump's attorneys will file additional appeals to overturn the sentence — prison time remains a possibility, even if it’s unlikely — as well as to toss the case out for a second time.
A courtroom sketch by the artist Jarvaland of former President Donald Trump and Justice Juan Merchan at the former president's criminal hush money trial. (Courtesy of Jarvaland)
Meanwhile, in the election interference case in the District of Columbia, Judge Tanya Chutkan will soon be reclaiming jurisdiction to assess whether the charges brought by the special counsel Jack Smith fall within or outside of the new guidelines of presidential immunity.
Of course, if Chutkan rules in favor of the prosecution, Trump will appeal that decision as well.
Based on Supreme Court Justice Clarence Thomas’ separate opinion in the immunity ruling and her concerns about the legality of the special counsel’s appointment, Judge Aileen Cannon on July 15 dismissed the “slam dunk” classified documents case in Florida.
Smith has appealed this ruling to the 11th Circuit Court of Appeals and has not yet asked the 11th Circuit to expedite this case. Thus, in all likelihood, a hearing before Cannon will not occur before sometime in the middle of October. Some time afterwards she will undoubtedly rule in favor of Trump. Then, the special counsel will appeal her decision.
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And so it goes: “Procedural justice” at work delaying and stymying “substantive justice.”
None of these appeals will ultimately be resolved for months if not years after the November election. The same can also be assumed should Trump file an appeal to toss out the Fulton County Georgia RICO case — this time for prosecutorial immunity rather than as he has previously done for the violation of his First Amendment rights.
So we now find ourselves in a situation where long before justice delayed is no longer justice denied, the American voters will decide.
As former U.S. prosecutor for the Southern District of Alabama and distinguished professor at the University of Alabama School of Law, Joyce Vance, has written: “Trump now faces prosecutors both in the courtroom and in the court of public opinion, where voters will decide whether to send a felon” — or, instead, a prosecutor in presumptive Democratic nominee Kamala Harris — to the White House.
In a nation that has seen the value of the rule of law diminished by the MAGA Supreme Court, the choice seems rather clear.
Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.
