Mother Jones; Patrick Semansky; Unsplash
One reason Donald Trump’s trial this month is so notable is that it is actually happening. As recently as last summer, it appeared that Trump would face four criminal trials ahead of the 2024 elections: two in state court and two in federal court. Today, it looks like the New York state hush money case will be the only one to reach a jury before November, and possibly ever. There is plenty of blame to go around for the delays. But one person who deserves a lot of that blame—or credit—is Trump himself.
As the press and voters debate whether Trump’s authoritarian tendencies could be checked in a prospective second term, it’s important to recognize that Trump is already escaping accountability thanks to the judges he installed during his first term, who have pushed off both federal cases against him.
During his presidency, courts acted as a major check on Trump—most importantly when he and his allies filed dozens of lawsuits across the country to try to overturn the results of the 2020 election. When those legal efforts failed, Trump turned to extralegal means to stay in power, culminating in a violent attack on the US Capitol.
Now, the judges Trump put in place are helping him evade responsibility for these and other actions. At the Supreme Court, they are even contemplating granting new levels of immunity to presidents that Trump could enjoy if he returns to power. It’s not only a gauge of how much damage Trump has already done, but a warning sign of the lengths the people he surrounds himself with are willing to go and how it will be nearly impossible to contain his strongman ambitions if he wins again.
Last summer, Special Counsel Jack Smith secured two indictments against Trump. The first targeted his willful retention of top-secret documents at Mar-a-Lago after his presidency. Trump refused to give back all the records, then engaged in an attempted cover-up, first to hinder their return and ultimately to thwart prosecution.
The facts of the case are shocking, including classified documents left in a bathroom and an order to delete security camera footage sought by a grand jury. Legally, the case is “absolutely airtight,” Georgia State University constitutional law professor Anthony Michael Kries told the BBC. As NYU professor Melissa Murray and former federal prosecutor Andrew Weissman write in their book, The Trump Indictments, in the documents case against Trump, “the evidence of guilt seems abundantly clear.”
And yet Trump has evaded trial in the strongest case against him due exclusively to the judge overseeing the case. For two years now, federal Judge Aileen Cannon has repeatedly shocked the legal community with unprecedented orders that have flouted the law, delayed proceedings, and protected Trump. The ex-president was lucky that Cannon got assigned this case—but he also helped make his own luck by putting her on the bench. When Trump nominated Cannon in 2020, her signature qualifications were her youth (she was 39) and membership in the conservative Federalist Society. After Trump lost the election, she was confirmed in a vote that garnered support from 12 Democrats.
Cannon first came to Trump’s rescue in 2022, when his lawyers went to federal court to try to halt the Justice Department’s investigation into Trump’s handling of purloined classified documents. Cannon obliged in spectacular fashion by blocking part of the probe. It was, according to Slate’s Mark Joseph Stern, the first time in US history that a judge had intervened to stop a criminal investigation before an indictment. Her actions were so lawless that they were soon rolled back by two separate panels of the conservative 11th Circuit Court of Appeals, which held that Cannon had pushed “a radical reordering of our caselaw” that violated “bedrock separation-of-powers limitations.”
Some judges might have been chastened by this humiliation—but not Cannon. After the investigation, when Trump was charged and the documents case formally assigned to Cannon, it was clear prosecutors had drawn the short straw—and that Trump would never face trial, or at least a fair one, under her watch. Over the past year, Cannon has continued to issue bizarre orders, held hearings on inane questions, and engaged in every manner of delay. And she shows no signs of stopping. This month, she pushed the trial off indefinitely while scheduling hearings on motions filed by Trump’s legal team that, according to experts, should be dispatched with quickly. Cannon has turned her federal courtroom into a kangaroo court.
In August of 2022, Smith filed his second indictment against Trump, this one over attempting to overturn his election loss. The case was assigned to federal Judge Tanya Chutkan in DC, an Obama appointee. By limiting the charges to Trump, Murray and Weissman write, “the indictment was built for speed—to get a trial date so that the American public could see the evidence and hear the jury’s conclusions.” Chutkan recognized, with the election looming, it was important to move expeditiously. But in his attempts to delay, Trump found even more powerful allies than a district court judge—several justices of the US Supreme Court.
Were it not for the Supreme Court, with three justices appointed by Trump, the ex-president would almost certainly be standing trial for his attempt to overturn American democracy and stay in power. Instead, the federal election subversion case has been turned on its head. Rather than usher along efforts to hold Trump accountable, the US Supreme Court is likely to use the case to grant Trump and future presidents some level of immunity. That would not only make Trump’s lawless power grab harder to prosecute, but future presidents’ illegal actions as well.
Even if the GOP-appointed majority doesn’t declare a new level of immunity for Trump and other former presidents as expected, their delays will spare Trump from trial until after the election: the justices have three times come to Trump’s aid by pushing back the case. The delay aids Trump’s campaign. If he wins, he will never face federal trial, either because he pardons himself, or simply directs his appointees at the DOJ to drop the charges.
Trump sought to delay and even derail the prosecution by claiming that ex-presidents enjoy absolute immunity for official acts made while in office—a bold assertion with no basis in the Constitution or precedent in the law. Chutkan smacked it down. When Trump sought review in the DC Circuit Court of Appeals, Jack Smith asked the Supreme Court to immediately take the case and leap-frog the appellate court. In their first move delaying the trial, the justices declined to step in.
After the appeals court rebuked Trump’s theory of immunity, Smith again asked the justices for help, as he urged the court to let the appellate ruling stand, or, failing that, to hear the case expeditiously. Instead, the justices took the case without any sense of urgency. Chutkan’s original March 4 trial date came and went. The justices heard the case on the last day of their term. After oral arguments, it appeared likely that the justices would wait until June to issue a ruling. When it comes, it will likely give some level of immunity to Trump, a complication that will mean the case cannot immediately proceed to trial.
There’s no way to know for sure which justices voted against taking the case when Smith first asked, which declined to let the DC Circuit decision stand, or which dragged their feet and kept the case moving slowly. But judging from oral arguments, it seems clear that the Trump-appointed justices, as well as those appointed by other Republican presidents, played a critical role.
The hearing offered evidence of the Trump appointees’ willingness to not only delay Trump’s trial, but also to make prosecuting a former president much harder. Brett Kavanaugh and Neil Gorsuch both expressed interest in limiting the possibility to varying degrees. While Amy Coney Barrett was much more skeptical of Trump’s immunity claims, she displayed interest in a compromise that would create new immunities nonetheless. By the end, the GOP-appointed justices had defended Trump’s immunity claims so robustly that Trump’s own lawyer declined to use his rebuttal time. “I have nothing further,” he triumphantly told the court when it was his turn to speak.
There are plenty of people responsible for the fact that Trump will face voters again without having gone under trial for attempting to overturn the last election. You could include Attorney General Merrick Garland, who let the DOJ’s investigations drag on before appointing Smith, and Fulton County District Attorney Fani Willis, whose sprawling Georgia-based conspiracy case took years to put together and now may be permanently derailed over her affair with one of the prosecutors.
But the person most responsible for escaping criminal prosecution is Trump himself, who, in four years as president, left his mark on the nation’s courts. Rather than a fluke, it might be a preview of how he can escape accountability if he becomes president again.
