Nearly two years ago, I wrote that Democratic prosecutors' lawfare campaign against Donald Trump would make the 2024 election the single largest jury decision in history. Now that the verdict is in, the question is whether prosecutors will continue their unrelenting campaign against the president-elect and his companies.
The answer is that it may not matter.
The election reflected a certain gag sensation for a public fed a relentless diet of panic and identity politics for eight years. The 2024 election will come to be viewed as one of the biggest political and cultural shifts in our history. It was the mainstream-media-versus-new media election; the Rogan-versus-Oprah election; the establishment-versus-a-disassociated-electorate election.
It was also a thorough rejection of lawfare. One of the things most frustrating for Trump's opponents was that every trial or hearing seemed to give Trump a boost in the polls. As cases piled up in Washington, New York, Florida and Georgia, the effort seemed to move more toward political acclamation than isolation.
Now, these cases are now legal versions of the Flying Dutchman — ships destined to sail endlessly but never make port.
If there is a single captain of that hapless crew, it is Special Counsel Jack Smith. For more than a year, Smith sought to secure a verdict in one of his two cases in Washington and Florida before the election. His urgency was seemingly shared by Judge Tanya Chutkan in Washington, but by few other judges or justices.
Around 2 am, Smith became a lame-duck prosecutor. Trump ran on ending his prosecutions and can cite a political mandate for it. Certainly, had he lost, the other side would be claiming a mandate for these prosecutions.
Trump's new attorney general could remove Smith and order the termination of his continued prosecution. That is less of a problem in Florida, where a federal judge had already tossed out the prosecution of the classified documents case, which some of us saw as the greatest threat against Trump.
In Washington, Chutkan, who proved both motivated and active in pushing forward the election interference case, could complicate matters. Under federal rules, it is up to Chutkan to order any dismissal.
In the case of former national security adviser Michael Flynn, Judge Emmet Sullivan resisted granting the dismissal sought by the Justice Department — a record that I criticized as both unusual and unwarranted.
Chutkan could run the incoming Trump administration around on any dismissal, but in the end, it should succeed in ending Smith's ill-considered indictment. In reality, Smith was not only losing the Florida case but was likely to be reversed again in Washington due to his refusal to make sufficient changes in his indictment of Trump after the recent immunity decision by the Supreme Court.
Smith could make one last push to damage Trump in the period before the inauguration by pushing for an immunity decision from Chutkan. He would again likely find a supportive ally in Chutkan.
However, in the end, this would do little to change the fact that the Flying Dutchman will soon be without a crew or port of call.
One of the most immediate cases to resume is the prosecution in Manhattan by District Attorney Alvin Bragg. Many, including commentators like CNN's senior legal analyst Elie Honig, have denounced that case as legally flawed and obviously politically motivated.
Judge Juan Merchan has scheduled a hearing on the immunity issue for Nov. 11 and possible sentencing on Nov. 26. Merchan has shown a pronounced bias against Trump in the past, and his counsel is likely anticipating a continuation of this pattern.
Merchan could sentence Trump to jail. However, such an abusive sentencing, even a brief one, would likely trigger an expedited appeal and would likely be stayed. Trump cannot pardon himself in a state case, but the case itself is a target-rich environment of arguable legal errors that could collapse on appeal.
Another case in New York is likely to move forward now. There is a pending appeal on the massive civil case against Trump brought by New York Attorney General Letitia James. For many, James is the very face of lawfare as a prosecutor who ran on getting Trump on something, anything.
She ultimately secured another openly biased judge in Justice Arthur Engoron, who imposed an absurd, grotesque $455 million in fines and interest against Trump and his corporation. Notably, some of the judges on the appellate panel seemed to agree with that assessment, questioning not just the amount but the very use of this law in a case where there was no victim no one lost a single dollar due to the fraud alleged.
My assumption is that the opinion is already written, held back only because of the election. It could now be issued and constitute a major change in the case. Whatever is left of that judgment, if anything, would then certainly be appealed.
Then there is the roaring dumpster fire in Georgia. An appellate court there will decide whether District Attorney Fani Willis and her office can continue prosecuting the case. If they are forced off the case, a new prosecutor must review the matter. While some criminal allegations against defendants can be established, the alleged racketeering conspiracy against Trump is legally flawed and likely to fail on appeal.
Trump will also continue to appeal civil cases such as the E. Jean Carroll case, which will linger long past the election.
Trump will not be the only defendant to see substantial changes on January 20, 2025. Trump has pledged to pardon those prosecuted over the Jan. 6, 2021 Capitol riot. The public elected him despite that pledge and over the opposition of Democrats. That will affect hundreds and may come in the form of a mix of pardons and commutations, depending on the underlying charges.
One lingering question will be whether those who supported this lawfare will be deterred in the future. The thrill-kill politics practiced by figures like James proved costly in this election. Polls showed that many citizens have lost trust in the FBI and now view the criminal law process as being politicized in places like New York.
The next few weeks will determine whether Democratic leaders are ready for a new course in ending the lawfare.
President Biden could pardon Trump. It would be a poison-pill pardon. Trump does not need a pardon as the incoming president, but Biden could take the matter off the table by treating him as presumptively guilty. He could not only claim to have taken the higher ground (even though he ran on and promoted the prosecutions of Trump as legitimate) but use it as cover for pardoning his own son.
New York Gov. Gov. Kathy Hochul (D) could also move to pardon Trump on the New York charges. Hochul was widely criticized for calling Trump supporters (now the majority of voters in the nation) "un-American." She could seek to make amends with a pardon.
In the end, Trump read the jury correctly. Once the lawfare was unleashed, he focused on putting his case to the public and walked away with a clear majority decision. It is unlikely that this will end all of his lawfare battles, but it may effectively end the war.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, 2024).
