David Dee Delgado/Pool Photo via AP
Former President Donald Trump attends the Trump Organization civil fraud trial in New York State Supreme Court, December 7, 2023, in New York.
Donald Trump got yet another delay in the trial for some of his 91 felony charges recently when the Supreme Court, on the request of both his lawyers and special counsel Jack Smith, agreed to hear his argument that he should be totally immune from prosecution. The judge overseeing that case, Tanya Chutkan, duly paused proceedings in the case until the matter is resolved, which will likely be a few weeks at least. Given that every day where Trump is not moving toward conviction is a day he avoids that hit to his presidential candidacy, a pause is a win.
Separately, Trump is also appealing the gag order placed on him by Chutkan. When the charges were filed and the judge selected, Trump flagrantly violated the integrity of the proceedings by posting vicious personal attacks against Smith, Chutkan, and several potential witnesses like Mark Meadows, directly causing a deluge of violent threats.
That led Chutkan to impose a gag order in mid-October forbidding him from targeting participants in the case personally. Trump appealed that order to the D.C. Circuit, a panel of which recently upheld the gag order but only in part, holding that Trump could still attack Smith, as well as the Biden administration and the Department of Justice. Now, Trump is appealing that decision again, asking for the whole D.C. Circuit to hear it. If that doesn’t work, he’ll appeal it to the Supreme Court.
Thus does the glacial pace of the American legal system, and the helpless timidity shown by most liberal judges in the face of wealthy elites, enable Trump’s attack on democracy.
No other American defendant would get this kind of kid-glove treatment. Ordinary schlubs get railroaded into plea bargains with outrageous charge-stacking, routine pretrial detention, and the most brutal sentences in the rich world. In the rare case that they can appeal a conviction, the Supreme Court almost never hears their case, and even when they do, the appeal is almost always a failure. Donald Trump, by contrast, gets to threaten the lives of actual judges, prosecutors, and their staff, with the only punishment being that some, but not all, of his unsubtle incitements to violence are a no-no. Or rather, maybe they are, pending appeal.
In this context, a theoretically laudable fixation on conducting Trump’s prosecution “by the book” becomes another manifestation of the egregious injustice built into every level of the legal system.
There is a particular political obscenity here, over and above the unbelievable deference the judiciary grants to rich people as a matter of course. The most important charges against Trump are for attempting to overthrow the government and install himself as dictator. If he had succeeded in doing so, the judiciary would have become his personal plaything—an instrument of his will to dominate and punish anyone who crosses him.
Now, after having attempted to destroy the very idea of law itself, and facing quite mild potential penalties relative to what traditionally happens to failed would-be dictators, Trump furiously whines and complains at every point in the proceeding, demanding privileges so outrageous that no one else would even think to ask for them, as part of a comically blatant strategy to string the process along until hopefully winning the election and declaring himself innocent. It could not be more obvious that, once again, Trump is trying to undermine the legal process by procedural abuses.
No other American defendant would get this kind of kid-glove treatment.
Meanwhile, in between statements about immigrants “poisoning the blood of our country” that are practically straight out of Mein Kampf, Trump is loudly and regularly promising that if he becomes president again, he will make the dictatorship stick this time. He’s planning to stack the bureaucracy with personal sycophants, obliterate the independence of federal agencies, and turn the military on any protesters. And these threats very much include the judiciary, especially those judges involved with attempts to hold him accountable.
Yet even most liberal judges, facing an existential threat to their entire profession, as well as serious threats to their own safety, can’t bring themselves to give Trump a taste of his own medicine. Chutkan at least is less tolerant of his lying garbage, but she did pause his trial. And the D.C. appellate decision rescinding part of her gag order, written by three Democratic appointees, reads like a parody of anxious liberal hand-wringing. “ Mr. Trump is a former President and current candidate for the presidency,” it reads, “and there is a strong public interest in what he has to say.”
Even granting the dubious idea that the public interest is served by Trump’ s semiliterate screeds on Truth Social, there is a far more obvious and compelling interest here. Whether he becomes president again will be highly influenced, and perhaps determined entirely, by whether these cases can be resolved in a timely and fair fashion. That interest is directly and seriously undermined by letting him speak about the trial in any way whatsoever. Indeed, if anyone has ever deserved pretrial detention, it is him.
One example of how Trump should be handled can be seen in the recent Colorado Supreme Court ruling holding that he is ineligible to run for the presidency on account of violating the 14th Amendment’s prohibition of any person holding federal office who “engaged in insurrection or rebellion” after having sworn an oath “to support the Constitution of the United States.” But this is almost certain to be overturned by the national Supreme Court, and in any case applies only to a state Trump is almost certain to lose anyway.
In some ways, all this is no surprise. Trump the businessman and politician is to a great degree a creation of the American judiciary. Early in his career, he figured out that the legal system was acutely vulnerable to someone with money and total shamelessness. He learned that if he categorically refused to admit defeat, clogging up the proceedings with endless motions and filings, he could rip off his contractors, repeatedly default on his debts, seemingly cheat the IRS out of millions in inheritance taxes, and get away with it just about every time. If you’re a star, they let you do it.
