For all that former president Donald Trump’s election to a second term was a remarkable political comeback, it was also the culmination of an audacious and stunningly successful legal strategy that could allow him to evade accountability for the array of charges against him.
The string of accusations lodged during the two years of Trump’s candidacy, seemingly enough to end the career of almost any politician, became in his hands a fundraising bonanza and a rallying cry, a deep pool of fuel for his rage and a call to demand retribution. The intensity of his campaign fed off the recognition that his personal freedom could be on the line.
He was indicted not just once but twice for plotting to overturn the 2020 election. He was accused of mishandling national security secrets and obstruction. He was found liable for sexual abuse and defamation, and for inflating his net worth. And he was found guilty of criminal charges stemming from a hush money payment to a porn actor.
Throughout it all, however, starting with his first indictment in the hush money case, legal proceedings that were meant to hold him to account seemed only to strengthen his support. His political standing strengthened, he was relentless in fighting off some charges, delaying a trial on others and banking on the election itself to settle what he could not win in the courtroom.
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The result is that the decision by voters this week to return Trump to the White House could lead all or many of the proceedings against him to be postponed or derailed altogether.
In pitting political power against the rule of law, Trump flipped the script he had been handed and turned the efforts of the courts to hold him to account into a core element of his campaign message.
And as the election results suggest, he managed to convince a share of his supporters that the cases brought against him were not attempts at justice, but rather an effort by Democrats to damage him and, by extension, them.
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“He built a legal strategy around his political reality, and that meant he did things no regular defendant could do, or maybe would do – achieving incredible success in the cases against him,” said James Burnham, a Republican lawyer who worked in the Trump administration.
Having taken his gamble, Trump will now get his pay-off.
Jack Smith, the special counsel, has begun discussions about how to wind down the two federal cases he brought against Trump, in keeping with a long-standing US justice department policy that bars prosecution of sitting presidents, a person familiar with the discussions said Wednesday.
That policy effectively dooms the indictment in Washington accusing Trump of subverting the 2020 election. And it will probably result in prosecutors under his command dropping Smith’s attempts to reinstate the charges in the classified documents case, which were dismissed this summer in an unexpected decision by a federal judge in Florida.
As for his two state criminal cases, Trump and his lawyers are sure to go after them by arguing that they should not survive the justice department guidelines that prohibit the prosecution of sitting presidents.
If that tactic is successful, it could pause or end the case Trump is facing in Fulton County, Georgia, where he stands accused of conspiring to reverse his election loss four years ago.
In New York, where he is scheduled to be sentenced in state court this month in the hush money case, he has already signalled that he intends to seek a delay, forcing the court to judge the wisdom and constitutionality of imposing prison time or probation on the man who is about to become commander-in-chief.
Less clear is the effect of his election on the civil cases he is facing.
A state court in New York has imposed penalties of more than $450 million (€416 million) on Trump for exaggerating the value of his business holdings. And a federal jury in New York City’s Manhattan borough has ordered him to pay $83.3 million for defaming E Jean Carroll, a New York writer whose account of having been sexually attacked by Trump decades ago was upheld by the court. He is fighting both judgments.
Trump is also facing a constellation of lawsuits from US Capitol Police officers and members of Congress accusing him of inciting the violence at the Capitol on January 6th, 2021.
Historically, the US supreme court has shielded presidents from civil litigation based on their official actions, and a court is working on deciding what category to put his role in the January 6th lawsuit into. However, the court has allowed lawsuits to proceed against a sitting president for private actions, such as alleged sexual misconduct.
Trump’s success in using his campaign as a protective shield has no parallel in legal or political history, and highlights the many ways in which politics and justice have become tightly, if uncomfortably, entwined since he first sought the presidency about a decade years ago.
“We have never really seen before criminal cases that played out more on the political stage than in the courtroom,” said Robert Mintz, a former federal prosecutor now in private practice. “Rather than focusing solely on the legal issues, the Trump defence adopted a high-stakes legal gambit that transformed these criminal charges into political opportunities and essentially bet the farm on the outcome of the election.”
The story of how the efforts to hold Trump accountable wound up adding fuel to his candidacy encompasses many steps – some taken by him and some taken by others.
It emerged from his willingness to dispense with traditional political thinking and to tolerate legal risks that few other public figures would accept. And it relied on flipping the indictments filed against him on their head, recasting them as evidence that powerful partisan forces were out to get him.
But the story was also assisted by a sympathetic supreme court majority that he helped to create. That majority first effectively pushed Trump’s federal election trial until after election day as it mulled what seemed like a long-shot argument that former presidents enjoy a substantial degree of immunity from criminal prosecution, and then gave him a landmark legal victory.
Trump’s success in evading accountability was also based in no small part on luck.
In the classified documents case, he had the good fortune of drawing a particular one of his own appointees as a judge: Aileen Cannon, an inexperienced jurist who had previously intervened to help him in the investigation. She ultimately dismissed the charges – against decades of precedent – on the surprising grounds that the special counsel, Smith, had been unlawfully appointed to his job.
And in the Georgia case, the prosecutor who filed the charges, Fani Willis, sabotaged herself and her indictment by having a romantic relationship with one of her top deputies. That decision was an unforced error resulting in defence claims that she should be disqualified from the matter, a move that left the case in limbo even before Trump’s victory at the polls.
– This article originally appeared in The New York Times.