It’s likely that if any of us were charged with even half of the felony charges former President Donald Trump is facing, we would almost certainly be in prison by now. Trump’s four indictments in three jurisdictions — both state and federal — would be virtually insurmountable for anyone other than a former commander in chief.
The fact that Trump has still as of this writing managed to remain a free man is a testament to both his immense privilege and the inability of the justice system to meaningfully rein him in. If any of us hope to stop Donald Trump from becoming the 47th president of the United States, it will have to be done from the ballot box, not the courts.
After Department of Justice special counsel Robert Hur declined to charge President Joe Biden with any crimes in his own classified documents probe, a senior adviser to former President Donald Trump complained about the “two-tiered system of justice” in the United States. Jason Miller told NewsNation in February that the 45th president of the United States was a victim of “selective prosecution” by the DOJ, alleging that Biden was getting fairer treatment than his predecessor.
But Trump remaining a free man in the face of dozens of felony indictments is a stark contrast to the case of Mark Sumrell, who was imprisoned for life without parole for stealing a $39 jacket from a grocery store in Mississippi more than two decades ago. Sumrell’s unusually harsh sentence was due to Judge Ashley Hines sentencing him under the Magnolia State’s habitual offender law as Sumrell has two prior nonviolent felony convictions: One for a robbery in 1991, and another for cocaine possession in 1993. Even though shoplifting carries a maximum sentence of five years, Sumrell, who is in his fifties, remains in prison. His daughter, who was two at the time of his sentencing, is now fully grown.
Sumrell’s case proves there is absolutely a two-tiered justice system in the United States, but not in the way Jason Miller alleges. Rather, the kid-gloves treatment Trump has received from the courts up to this point is proof that wealthy, powerful, politically influential white men are able to wield their status to effectively skirt accountability in ways that ordinary people cannot. Stopping Trump is up to the voters. And motivating the most important voting constituencies to show up is up to Biden and the Democratic Party.
How Trump’s mastery of delay trumped the justice system
For a time, it appeared as if prison was inevitable for the former president. Between Manhattan District Attorney Alvin Bragg’s 34-count indictment, Department of Justice special counsel Jack Smith’s 37-count indictment in the Southern District of Florida and his four-count indictment in the District of Columbia, and the 10 felony counts he’s facing in Fulton County, Georgia, it seemed highly unlikely that Trump would make it to the Republican National Convention as a free man, let alone the general election in November.
But yet again, Trump has wriggled his way out of nearly every jam, just as he’s done since running for office. The only legal proceeding that will conclude with a verdict before November is his ongoing criminal trial in Manhattan, which is regarded as the least egregious of the four. And even if the former president is found guilty of any single felony charge, he’ll be able to stave off a prison sentence past November through the appeals process. For a man as wealthy and powerful as Trump to not be afforded plentiful time for an appeal is extremely unlikely.
Earlier this month, the Georgia Court of Appeals granted Trump’s request to hear his appeal of Judge Scott McAfee’s decision to allow Fulton County District Attorney Fani Willis to remain on the case as lead prosecutor. Attorneys representing Trump co-defendants in Willis’ sprawling RICO indictment argued that her prior romantic relationship with special prosecutor Nathan Wade constituted a conflict of interest. McAfee ruled that one of the two could remain on the case, and Wade submitted his resignation to Willis the same day McAfee issued his ruling (she promptly accepted it).
But now that Georgia’s appellate court has agreed to hear Trump’s case, this means that the Fulton County case likely won’t go to trial until late 2025 at the earliest. Atlanta Journal-Constitution politics reporter Greg Bluestein told MSNBC that if the court dockets Trump’s case soon, the earliest that a ruling could be expected would be in March of 2025. And even if that appeal doesn’t go Trump’s way, Judge McAfee would likely still give both sides two to three months to prepare for trial, meaning Trump won’t have to worry about having to physically appear in a Georgia courtroom until the summer of next year (assuming he’s not in the White House).
For all his work in attempting to hold Trump accountable in the federal judiciary, Jack Smith may have nothing to show for it depending on what happens in November. The Supreme Court of the United States (SCOTUS) still has yet to issue a ruling on the ex-president’s claims of absolute immunity from criminal prosecution for official acts carried out in office after hearing oral arguments in April. And a victory for Smith on that decision is uncertain, given how some of the more conservative justices appeared to take Trump lawyer John Sauer’s arguments seriously.
In an article for the New Republic, journalist Brynn Tannehill wrote that while the former president “should be going down in flames 9-0,” at least five SCOTUS justices “seemed to buy into the Trump team’s arguments that the power of the office of the president must be protected from malicious and politicized litigation.” She argued that the Court ruling in Trump’s favor would effectively mean that SCOTUS will have “castrated itself,” and “signed its own death warrant” as a decision upholding criminal immunity would signify an end to the judicial branch being able to check the power of the executive.
The Court technically doesn’t have to issue a ruling until its term ends in June, and U.S. District Judge Tanya Chutkan has already indicated that once the ball is back in her court that both sides would get as many as 90 days to prepare for trial. This means that Trump might not have to face prosecution for his alleged role in the events leading up to the January 6, 2021 siege on the U.S. Capitol until September. Notably, SCOTUS has yet to rule on a separate case involving a January 6 defendant who was charged under the same statute as Trump. If the far-right Supreme Court rules in his favor — which a Reuters report suggested was likely based on oral arguments — that could weaken Smith’s indictment against Trump even further in the DC election interference case.
And finally, the Mar-a-Lago classified documents case — which is perhaps the most open-and-shut case against the 45th president due to the overwhelming evidence the DOJ has accumulated — is also the least likely to happen, due to the judge overseeing it. The ex-president couldn’t have gotten a better draw anywhere in the country than U.S. District Judge Aileen Cannon, who he appointed to the bench to a lifetime term in 2020. Initially, Trump was to stand trial in that case on May 20. However, Cannon has scuttled that date, citing the backlog of eight pre-trial motions she has yet to rule on that she says may take until late July.
Smith has previously threatened to petition the 11th Circuit Court of Appeals, which supervises Cannon’s district, to assign a new judge to the case. But according to Syracuse University law professor Greg Germain, that could be easier said than done. He told Newsweek that while there were “serious questions about whether Judge Cannon was biased or incompetent,” Smith was limited in his options to argue for a new judge based purely on her scheduling order. Because Cannon’s decision to indefinitely postpone proceedings was interlocutory (meaning interim or temporary), it can’t be appealed. Germain added that it would be hard for Smith to win an appeal as it’s “very hard to overturn a scheduling order because courts have broad control over their own calendars.”
“Trump is a master at denial and delay,” longtime Republican pollster Whit Ayres told Bloomberg in May. “He’s got a lot of experience with it, but he also has a Justice Department that’s waited a long time to get serious about prosecuting [the Mar-a-Lago case].”
If Trump succeeds in running out the clock on his two pending federal trials and wins the election, he could escape accountability entirely if he becomes the 47th president of the United States. If he appoints a pro-Trump attorney general to oversee the DOJ, Trump could effectively ensure that his appointee dismisses both of Smith’s indictments against him outright.
Even on the off chance that a trial happens before the election and he is convicted, there would be nothing stopping Trump from issuing a presidential pardon to himself. And while presidential pardons don’t extend to state-level convictions, Trump’s Georgia attorneys have said that he shouldn’t have to stand trial until his second term ends in 2029 if he wins the election, arguing that his duties as president supersede any action from the courts. If the ex-president wins a second term, New York authorities may have difficulty enforcing a sentence from Judge Juan Merchan if Trump is found guilty in Manhattan. It’s unlikely that Governor Kathy Hochul (D) would have the stomach to force a public standoff between New York state troopers seeking to haul Trump off to prison, and U.S. Secret Service agents sworn to protect Trump outside the White House in 2025.
A Trump victory is a very real possibility depending on turnout
The only way for Trump to avoid prison, and the only way for America to have any hope of the justice system prevailing against the quadruple-indicted ex-president would be for Trump to secure 270 electoral votes in November. And the Electoral College math is admittedly not great for Biden as of mid-May.
In the latest New York Times/Siena College poll of both likely and registered voters in the six swing states likely to decide the 2024 Electoral College majority — Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin — Trump is leading in five of them (Biden leads among likely voters in Michigan, and among registered voters in Wisconsin). Trump’s lead is largely due to defections from young voters and minority voters, particularly among the African American, Hispanic, and Arab-American demographics.
Bizarrely, the poll shows that those constituencies, which are historically Democrat-leaning, still back Democrats in down-ticket races, with Senate candidates in those swing states still in front of their Republican rivals. When the Times’ Nate Cohn dug into what’s causing voters to be more enthusiastic about Democratic U.S. Senate candidates than the party’s presidential candidate, Biden’s handling of the ongoing humanitarian crisis in Gaza appears to be the primary cause.
Roughly 70% of Muslim voters told the Times that Gaza was their chief hang-up with the president. That could prove significant in cities like Dearborn, Michigan, where a sizable portion of Muslims with Palestinian ties expressed their dissatisfaction with Biden by voting “uncommitted” in the Mitten State’s Democratic primary. More than 100,000 Michiganders checked that option on their primary ballot in the state Biden won by less than three points in 2020.
Voter turnout — particularly in those six states — will decide whether Biden or Trump will be in the White House for the next four years. Biden still has several more months on the calendar to barnstorm swing states and blanket airwaves with messaging hyping his accomplishments on both supercharging the economy and significantly lowering crime rates nationwide. But he can’t simply bank on voters’ fear of Trump, which is arguably already at a maximum.
If he hopes to drive enough voter turnout to win the Electoral College, Biden has to show voters what he’s for, provide a compelling vision for how he would lead America for the remainder of the decade, and get buy-in specifically from demographics where enthusiasm is waning. The stakes are too high for us to stay home, and for Biden to not go all-in to win every vote.
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