Trump – and the rule of law – on trial

William Roberts, IBA US CorrespondentMonday 4 December 2023

Former US President Donald Trump is questioned by Kevin Wallace of the New York Attorney General's Office, during the Trump Organization civil fraud trial before Judge Arthur Engoron in New York State Supreme Court in the Manhattan borough of New York City, US, 6 November 2023 in this courtroom sketch. REUTERS/Jane Rosenberg

Former US President Donald Trump is facing four criminal prosecutions and a civil fraud trial while running for re-election. Global Insight assesses the implications for the rule of law.

At a campaign rally in the US state of New Hampshire in mid-November, former President Donald Trump promised to ‘root out’ his opponents like ‘vermin’ who, Trump says, ‘lie and steal and cheat on elections’ to ‘destroy America’. The language threw ominous light on threats Trump has made to, if re-elected, use the US Department of Justice to go after Joe Biden, the current US President, and others.

It’s the latest attack line from Trump, who’s poised to capture the Republican nomination for president in 2024. Early votes in Iowa and New Hampshire are scheduled for January and the US presidential election is less than a year away. Facing criminal prosecutions and civil lawsuits, Trump’s campaign rhetoric is becoming increasingly extreme. For example, he has called Jack Smith, the US special prosecutor in Washington, DC, who has brought charges against him, ‘deranged’.

Trump presently faces trial in four criminal prosecutions and one civil fraud case brought by federal and state authorities. The cases are far-reaching and go to the former president’s conduct both in and out of office. Trump has disputed the charges across the board. In combination, the allegations paint a picture of a dangerous demagogue who openly disregards democratic norms and the rule of law.

‘Our system has failed in some important ways here in the United States’, says Chris Edelson, an assistant professor of government at American University in Washington, DC. ‘In a functioning, healthy liberal democracy, when Donald Trump encouraged and praised the attack on the Capitol on 6 January and was then impeached in the House of Representatives, he would have been removed from office. He was not, and so what we’re left with is prosecutions as a way to hold him accountable.’

In part because, under the US system, Donald Trump is still allowed to run for president, it’s unclear what will happen next, adds Edelson. ‘What [Trump] hopes is that he can win election and therefore avoid responsibility in these criminal cases’, he says. ‘He’ll be fighting to stay out of jail. He expects his best path to stay out of prison is to win [the] election and it’s possible that he could.’

In Manhattan, Trump is under state indictment for allegedly falsifying business records to cover up hush-money pay-outs to adult film star Stormy Daniels and Playboy model Karen McDougal, which he denies. The trial is scheduled to begin in late March 2024. Meanwhile, New York State Attorney General Letitia James is seeking $250m in damages and a ban on Trump doing business in the state for falsely inflating the value of his properties. That trial began in October.

In Georgia, Fulton County District Attorney Fani Willis has brought charges under the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act against Trump and 18 other individuals. Three of Trump’s former legal advisers and a fourth defendant have pleaded guilty to reduced charges and agreed to testify truthfully on behalf of the state. A trial date for Trump and the other defendants – all of whom have pleaded not guilty – has not been set.

Special Counsel Smith has brought two separate sets of charges against Trump, one in South Florida involving the handling of classified documents, and a second in Washington, DC, relating to Trump’s attempts to overturn the 2020 presidential election. Trial in the documents case could begin in May 2024, but may be postponed. Trial in the election fraud matter could begin in early March. Trump rejects both sets of allegations.

‘A lean, mean indictment’

The two cases relating to Trump’s attempts to overturn the 2020 election – one federal, one state-level – are probably the most politically explosive for the American public. President Joe Biden won the 2020 national popular vote by 81.3 million to Trump’s 74.2 million, although the archaic 18th century structure of the US electoral system meant the real contest was much narrower.

US presidents are not elected directly, but rather by the Electoral College, an institution established under the US Constitution in 1789 that apportions ‘electors’ within a ‘college’ to individual states based on population. Biden won the Electoral College with 306 electoral votes to Trump’s 232 after winning Michigan, Pennsylvania and Wisconsin, states in which Trump had been victorious in 2016. Biden also won Arizona and Georgia, which had previously voted for Republicans. In those five swing states, Biden won by narrow margins – a combined 277,000 votes. If three of these five states had gone the other way, Trump might have still lost the popular vote but kept the White House.

Trump and his political allies brought 76 lawsuits challenging the election results at the state and local level. All but two were dismissed for lack of evidence or failed on the merits. The two that succeeded were minor and did not allege fraud.

Despite this, Trump campaigned on his unfounded claims that the election had been decided fraudulently. He organised a massive rally of supporters in Washington, DC, the day Congress was to meet in formal session to count and validate the Electoral College vote. Thousands of violent pro-Trump protesters overran Capitol police barricades and invaded the halls of Congress, forcing an hours-long delay in proceedings. His team sought to substitute fake electors from key states, according to testimony presented to the US House of Representatives’ January 6 Committee in summer 2022.

After a year-long congressional investigation turned up a mountain of damning evidence about Trump’s conduct, Smith brought a four-count indictment against the former president on 1 August. It charges Trump with conspiring to defraud the US, disenfranchise voters and attempting to obstruct an official proceeding. ‘The most important charge is the conspiracy to stop the certification of the electoral college vote’, says Gene Rossi, a shareholder at law firm Carlton Fields in Washington, DC, and a former US Department of Justice prosecutor.

‘This indictment is against Donald Trump alone. It is a lean, mean indictment and he is facing very serious consequences’, Rossi says. ‘It’s possible that Donald Trump will be found guilty by a jury before the election being held in November 2024. That, in itself, is historic, remarkable and downright shocking that the former president is facing such serious charges.’

In the nearly three years since the 6 January 2021 riot, more than 1,200 people have been charged for crimes related to the breach of the US Capitol. More than 400 were charged with assaulting or impeding law enforcement. Organisers of right-wing groups the Proud Boys, Oath Keepers and others who were in the vanguard of the mob that stormed the Capitol have been sentenced to lengthy prison terms of ten or more years. ‘Their main goal was to prevent Congress – the House and Senate – from doing its job on [6 January]’, Rossi says. ‘The people who were storming the Capitol, at the direction of the president and [with] his encouragement and his enthusiastic support, what they wanted to do was […] scare the living daylights out of members of Congress, if not harm them on that day.’

Former Vice President Mike Pence was presiding over the Electoral College count when protestors breached the Capitol. Responding to a tweet by the president, the pro-Trump crowd was chanting ‘Hang Mike Pence’. A makeshift scaffold was erected on Capitol grounds. Some 114 police officers were injured, some seriously in hand-to-hand battle with protestors who wielded bear spray, baseball bats, shields and spears.

Now, Trump’s federal trial in Washington, DC, is being presided over by US District Judge Tanya S Chutkan. Appointed by former President Barack Obama, Chutkan has ordered Trump to notify the Court by 15 January as to whether he intends to use the ‘advice-of-counsel’ defense – a risky strategy for avoiding culpability in which it’s claimed that a defendant followed professional legal advice leading to the commission of the alleged crimes. Trial is expected to begin on 4 March, the day before ‘Super Tuesday’ – when 15 US states and two territories will hold primary votes for the Republican presidential nomination.

Importantly, Trump also faces very serious racketeering charges in Fulton County, Georgia, relating to his attempt to overturn the 2020 election. A sweeping 41-count indictment brought by grand jury charged Trump and 18 others with conspiring to fraudulently overturn the election by submitting fake Electoral College votes to Congress. The case will probably feature prominently in the upcoming presidential campaign. Trump denies wrongdoing.

Trump’s White House Chief of Staff Mark Meadows, lawyer Rudy Giuliani – a former US prosecutor and the mayor of New York between 1994 and 2001 – and John Eastman, a California lawyer and politician who, it’s claimed, was the architect of the alleged plot, are among those charged. All deny wrongdoing.

Georgia has an expansive RICO statute that gives Fulton County District Attorney Fani Willis latitude to charge a large number of alleged conspirators who joined Trump in trying to undo the state’s election results. The RICO law allows Willis to bring in a wide set of facts as evidence, including with regard to actions defendants may have taken in other states.

‘Going to stay in power’

In a key development, excerpts of video recordings of prosecutors’ interviews with former Trump attorneys Kenneth Chesebro, Sidney Powell and Jenna Ellis were published online after the three reached plea deals.

In one telling exchange, Ellis recounted an encounter at a White House Christmas party in December 2020 with Trump aide Dan Scavino. Ellis offered Scavino regret that legal challenges to Biden’s victory had failed. Scavino responded that Trump intended to stay in the White House regardless.

‘And he said to me, in a kind of excited tone, “Well, we don’t care, and we’re not going to leave”’, Ellis recalled for prosecutors the conversation with Scavino. ‘And I said, “What do you mean?” And he said “Well, the boss”, meaning President Trump – and everyone understood “the boss”, that’s what we all called him – he said, “The boss is not going to leave under any circumstances. We are just going to stay in power”.’ Ellis said she told Scavino, ‘Well, it doesn’t quite work that way, you realise?’ and he responded, ‘We don’t care’.

Trump's lead counsel in the Georgia case, Steve Sadow, called the ‘purported private conversation’ that Ellis recounted ‘absolutely meaningless’.

A defence attorney representing one of the remaining 15 defendants acknowledged having provided videos to a news outlet. Willis sought, and the judge agreed to, a protective order in the case.

An explosion caused by a police munition is seen while supporters of former US President Donald Trump riot in front of the US Capitol Building in Washington, DC, 6 January 2021. REUTERS/Leah Millis

Chesebro, a lawyer who had studied constitutional law at Harvard Law School is alleged to have conceived and coordinated a plan to have 16 Georgia Republicans claim that Trump had won the state and declare themselves Georgia’s ‘duly elected and qualified’ representatives to the Electoral College. Chesebro didn’t admit to the state’s original conspiracy charge and instead pleaded guilty to a single felony charge of filing a false document. Chesebro’s lawyer said the deal with prosecutors ‘proves that he was not and never was the architect of any sort of fake elector plan or anything like that’.

Powell promoted a conspiracy theory after Trump’s defeat in 2020 that foreign actors had engineered a way to flip votes on electronic ballot systems from Trump to Biden. She joined Trump’s legal team, participated in White House meetings with Trump and played a prominent role in pushing Trump’s false claims.

District Attorney Willis has predicted the trial won’t start until mid-2024, meaning it’ll be ongoing during the height of the presidential contest. It probably won’t conclude before late 2024 or early 2025.

Were Trump to gain the Republican nomination and win the general election in 2024, he would become president on 20 January 2025. In that event, a strong constitutional argument would be available to Trump that a state prosecutor shouldn’t be allowed to interfere with the business of the US government by pressing charges against an elected or sitting president.

‘It's really extraordinary that we have a former president of the United States under criminal indictment with many, many serious charges pending’, says John Shaw, Director of the Paul Simon Public Policy Institute at the Southern Illinois University. ‘It's astonishing.’

What’s particularly unusual is that Trump is charged with attempting to prevent the peaceful transfer of power between opposing parties. And subsequently, while his prosecutions appear to have helped him among Republican voters, the outcomes of his trials could well mean disaster for his candidacy and party in the general election.

Trump is explicitly claiming ‘election interference’ and is attacking judges, prosecutors and clerks as politically biased. In June he accused President Biden of ‘weaponising’ the US Justice Department against him. ‘It really goes […] to the essence of our democracy, the heart of a democracy, which is the peaceful transfer of power. That has been one of the magics of the American system for two hundred and fifty years’, says Shaw.

‘We have laws in the United States that make it clear that the executive branch cannot use the Department of Justice and prosecutors to go after political opponents’, says Rob Bernstein, Secretary of the IBA Rule of Law Forum, who comments in a personal capacity. ‘Whenever you have someone saying a sitting president is weaponising the Justice Department, that undermines confidence in the impartiality of our justice system, and our law enforcement in general, which is a threat to the rule of law.’

‘When the credibility and the legitimacy of the legal process is cast in doubt, as is happening right now, it creates a climate that undermines confidence in our entire judicial system’, Bernstein adds.

From Florida to New York

Meanwhile, Trump is facing legal action for other reasons. The former president, a personal aide and a Mar-a-Lago worker were indicted in August on charges of improperly handling hundreds of classified documents the former president had taken – the government says illegally – from the White House to the Mar-a-Lago estate in Florida, to which all have pleaded not guilty. As president from 2017 to 2021, Trump had accumulated dozens of boxes of papers and mementos, including secret materials he received from regular intelligence briefings.

When the National Archives, the US agency responsible for retaining presidential records, asked for the materials, Trump returned some, but kept others and allegedly evaded follow-up attempts by his own lawyers to catalogue and return what he had. The FBI raided Mar-a-Lago in August, seizing 102 secret US documents. ‘Obviously, when you’re talking about national security documents, that’s a big no-no’, says Paul Pelletier, a former top prosecutor at the Department of Justice who’s now a practising litigator in Washington, DC.

The Mar-a-Lago documents case isn’t expected to go to trial before May 2024 and will probably be delayed further. There’s a good chance it’ll be delayed until after the election. US District Judge Aileen Cannon, who was nominated to the bench by Trump in 2020 while he was President, is handling the case. She has signalled a willingness to give Trump’s defence ample time to review the classified documents underlying the case, which invokes a separate and complex set of US evidentiary procedures. As with the other cases, Trump has denied wrongdoing.

Meanwhile in New York, state Judge Arthur F Engoron, who is overseeing a non-jury trial in Trump’s civil fraud case, has already ruled that the Trump Organization filed false financial statements with banks and insurers, though this is being appealed. At issue in the proceedings is what remedy and penalties should apply.

Trump and his three adult children were called to testify at trial in the case. On the stand, Trump accused the judge of being biased against him and attacked state Attorney General James, referring to her as a ‘political hack’. Notably, the judge issued a gag order prohibiting Trump from attacking his law clerk on social media, which Trump then flouted, drawing a $10,000 fine.

Authoritarianism versus democracy

The first real test of whether Trump will become the Republican nominee for president in 2024 comes in the Midwestern state of Iowa on 15 January. Republicans will attend party meetings known as ‘caucuses’ in community centres and local auditoriums across the state. Polls show Trump with a strong lead in Iowa over his nearest rivals, Florida Governor Ron DeSantis and former South Carolina Governor and UN Ambassador Nikki Haley.

‘This is one of those many, many unprecedented situations that Donald Trump presents. He’s a different candidate than we’ve ever seen before’, says Rachel Paine Caufield, professor and co-chair of the Department of Political Science at Drake University in Des Moines, Iowa. ‘This is not even close. He is absolutely the frontrunner in this [nominee] field.’

‘The indictments appear to, at least at the beginning, be helping Donald Trump. His initial indictment in New York gave him a bounce in the polls’, Caufield says. ‘He seems to be served well by the idea that there is an establishment elite that are coming after him, they’re politically motivated, they have bad intentions.’ She adds that ‘when those mug shots came out of Fulton County Georgia it didn’t hurt Donald Trump. It helped Donald Trump. He raised money on his mug shot’.

Polls show up to 70 per cent of Republican voters still believe that Trump won in 2020 and think he can do it again in 2024. One of the reasons for that and one of the troubling aspects of the political situation in the US is the self-reinforcing feedback loop between Trump, his base, supportive media including Fox News television and those politicians who continue to toe his line. There are leading politicians who were in the US Capitol on 6 January and witnessed events, and yet still back Trump, says Shaw. ‘They saw the medieval combat unfolding and they know exactly who triggered it’, Shaw says. ‘Their immediate reactions were very critical and very visceral. But then they decided that the most important thing was to get a sense of where the base was. And when the Republican base was willing to forgive Trump, even for the violation of this sacred norm, the lawmakers fell in line.’

Anne Ramberg is Co-Chair of the IBA’s Human Rights Institute Council. ‘Democracy built on the rule of law is severely [in] danger in the US. So far the checks and balances have been upheld by the judiciary,’ she says. ‘But Mr Trump is doing everything he can to obstruct democracy and the rule of law. The consequence is of course devastating for the US and for the whole democratic world. In the light of [...] more autocrats coming to power in large and important countries it is a dangerous development. There is an obvious pattern where we see weakened democracy in several countries.’

After Iowa, the Republican nominating contest will unfold quickly. Voters go to the polls in New Hampshire on 23 January, Nevada on 8 February and South Carolina on 24 February. The District of Columbia, Idaho, Michigan, Missouri and North Dakota vote in the first week of March. By 5 March – known as ‘Super Tuesday’ – nearly half of delegates to the Republican nominating convention will be decided.

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com