CNN
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As last summer came to a close, the four criminal cases that had been brought against former President Donald Trump posed both extraordinary political peril as well as the very real threat that the 2024 Republican White House front-runner would be convicted by multiple juries before the first ballot was cast.
What a difference a year made – or, perhaps more accurately, didn’t make.
With Monday’s Supreme Court presidential immunity ruling likely preventing a trial in the federal election subversion case before the election, Trump is poised to avoid pre-election trials in the three most significant criminal prosecutions he faces.
He was convicted in the fourth. But the hush money case brought by the Manhattan district attorney was widely viewed as the least serious and most tangential to the choice voters will make on November 5, as it used a controversial legal theory to target conduct that has been publicly known for nearly a decade.
It is possible that he won’t even receive prison time in the case.
And in a longshot bid, a source told CNN that Trump’s legal team filed a letter Monday seeking to challenge the former president’s conviction in New York based on the high court’s ruling on presidential immunity.
“The sad thing is, of the four, it’s the one that feeds Trump’s narrative of political persecution, which is tragic,” said Ty Cobb, who served as Trump’s White House lawyer during the special counsel Russia investigation but now opposes his reelection.
“I think that [narrative of political persecution], more than the conviction, will have a bigger effect on the election, which I’m horrified about,” Cobb said.
Americans will go to the polls this fall without a verdict on whether Trump broke federal and state laws by seeking to overturn the 2020 election, or whether his hoarding of sensitive government documents post-presidency violated national security statutes.
November’s election will not only select the country’s next leader. It will determine Trump’s legal fate. If elected, it’s widely expected that Trump will make the federal prosecutions against him go away, either by ordering his attorney general to dismiss them or by pardoning himself. The Georgia election subversion case, meanwhile, is on hold while an appeals court considers a bid to kick Fulton County District Attorney Fani Willis off the case, and the prosecution now faces other major hurdles.
“If Donald Trump wins the election, no criminal trial of his will ever go forward,” said Paul Rosenzweig, who worked for the Whitewater investigation into Bill Clinton and went on to serve as an official in the Department of Homeland Security. “We couldn’t count on the criminal justice system to save us. The electoral system is what will define in the end how we do.”
Several factors contributed to Trump’s apparent escape from criminal culpability before the election. The wheels of justice turn slowly, as the adage goes, but Trump benefited from legal perks and lucky breaks outside the reach of any other defendant.
They included a well-financed legal strategy built around delay, missteps by his opponents, an almost unbelievable case assignment coincidence and now, a Supreme Court ruling that will delay and undermine what was the marquee case against the former president.
“The law can very clearly be used as an instrument of justice and it can very clearly be used as an instrument of injustice,” said Rep. Jamie Raskin, the Maryland Democrat who led the second House impeachment team against Trump.
“The rules can be used to tie everybody up in knots and dilute the moral clarity of a situation or the rules can be used to illuminate the moral meaning of a situation,” Raskin told CNN in an interview last week.
A Supreme Court ruling that hamstrings the DC federal subversion case
The charges by special counsel Jack Smith alleging Trump subverted the 2020 election was the second to last of the four cases brought. It broke significant legal ground and posed novel, gravely important legal questions
Yet, it started off at the quickest pace – in no small part due to District Judge Tanya Chutkan’s zero tolerance for lollygagging – and by the end of last year, it looked likely to be the first to reach a jury, with a trial scheduled for March.
Smith sought to maintain that momentum last December by rushing to the Supreme Court the question that he said needed to be decided before trial: whether presidential immunity Trump claimed he had shielded him from the prosecution.
But the Supreme Court did not go along with Smith’s plans, first declining his request that the justices jump ahead of the usual appeals process that would first go to the DC Circuit Court. Once that appeals court issued its ruling rejecting wholesale Trump’s sweeping claims, the high court put the case on pause this spring so that it could make the final decision.
The justices’ consideration of the case halted the pre-trial proceedings for four months, and now their Monday ruling stands likely to add many more months of litigation before a jury hears the charges.
Even some of Trump’s critics, however, have defended the court’s handling of the matter, noting that by standards of the high court, the dispute did move on a fast track.
“You can’t charge a former president for a crime for the first time in history without going to Supreme Court,” Cobb said.
The DC Circuit deserves some blame for the delay, according to Cobb, as its ruling “was more of a body blow than a surgical assessment of the law.”
Chief Justice John Roberts’ opinion for the majority pointed specifically to the lack of “factual analysis” by the lower courts to explain why another round of pre-trial proceedings would be necessary.
More than just delaying the case, however, the Supreme Court’s ruling will make the charges significantly harder to prove if the prosecution does reach a trial. The conservative majority did so by ruling that alleged conduct determined to be an “official” presidential act is not only subject to immunity but cannot be used as evidence to support the charges targeting Trump’s unofficial conduct.
“A lot of the evidence that Smith had that indicates the criminality of what Trump was trying to do has now been declared off limits,” said Rosenzweig, who signed on to a friend-of-the-court brief opposing Trump’s arguments in the Supreme Court case.
A Trump-appointed trial judge slow walks Smith’s other case
Compared to his first-of-its-kind election subversion case, Smith’s classified documents charges against that Trump was, in theory, a simpler, cleaner-cut prosecution.
The allegations that Trump unlawfully retained national defense information and then obstructed a federal investigation into the materials focus almost entirely on his conduct after leaving the White House. And much of the case resembles prosecutions brought routinely by the Justice Department against government officials who mishandle the nation’s secrets.
But Smith got a bad break in the south Florida judge who was handed the case, drawing in a random lottery Aileen Cannon, a young, inexperienced Trump appointee. She previously handled the lawsuit Trump brought challenging the FBI’s search of Mar-a-Lago and was rebuked by a conservative appeals court for rulings that showed special treatment to the former president.
In the criminal case, Cannon has taken months to rule on pre-trial disputes that legal experts say are not close calls. She’s dragged out the proceedings by requiring days of hearings on Trump’s longshot arguments. Even though she so far has rejected his efforts to toss the charges, she’s hinted she’d let him put in front of a jury his far-fetched and legally dubious claims about the case.
Assuming Trump does not become president and make the case go away, it could take years before the charges reach trial. And Cannon’s questionable handling of the case makes a messy appeal almost guaranteed.
“Cannon’s performance is historically perverse for a federal judge,” Cobb said.
Unforced error by Georgia prosecutor puts entire case at risk
If the assignment of Cannon was an incredible moment of fortune for Trump, then an unforced error in judgment by Willis was a godsend.
Her prosecution of Trump and 18 codefendants for their alleged interference in Georgia’s 2020 election is now on indefinite hold while the Georgia Court of Appeals reviews ethical allegations against the prosecutor for her romantic relationship with her deputy.
The appeals court could decide to disqualify Willis, a decision sources have told CNN would effectively kill the entire case.
Willis and defenders say her affair with Nathan Wade, who served as her top prosecutor, was not a violation of ethical standards. Nonetheless, it may have cost her the prosecution and even those who cheered on her case say she should have exercised better judgment given the high stakes. As the only state election interference prosecution of the presumptive Republican presidential nominee, it’s a criminal case for which Trump could not pardon himself, even if reelected.
After the trial judge said Willis could stay on the case as long as Wade got the boot, the defendants appealed that ruling and obtained a hold on the prosecution while the appeal plays out – a process that could take many months and has effectively ensured the case will not go to trial before November’s election.
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The fallout from Willis’s own actions – coupled with the Supreme Court’s decision on immunity – may mean that Trump never stands trial in Fulton County, regardless of whether he wins the 2024 election.
If and when the trial court proceedings are allowed to restart, the trial judge, Fulton County Judge Scott McAfee will have to go through the same analysis on presidential immunity that the US Supreme Court is requiring in the federal election subversion case.
That will likely throw a big wrench into the way the case was put together, according to CNN analyst Michael Moore, pointing to the Georgia anti-racketeering law that is the foundation of the prosecution.
“The usual benefit of that charge is that each defendant can be held accountable for the bad acts of their co-defendants,” said Moore, who was a US attorney in Georgia under President Barack Obama. But the new Supreme Court immunity standard jeopardizes the use of much of that conduct in the case.
“I think the case is likely toast as it relates to Trump,” Moore said.
This story has been updated with additional details.
CNN’s Kara Scannell, Lauren Fox and Zachary Cohen contributed to this report.
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