The decision swiftly ended the legal fight over whether states could bar Donald Trump from their ballots based on the Constitution’s 14th Amendment.
On March 25, in room 1530 of Manhattan Criminal Courthouse, a trial unlike any other is scheduled to begin: A criminal trial of a former U.S. president, Donald Trump.
Donald Trump’s first criminal trial set to begin March 25 as judge denies bid to dismiss “hush money” case
“We’ve never been in a situation like this where we’ve been faced with the prospect of holding a former leader to account,” said Melissa Murray, who teaches constitutional law at the New York University School of Law.
Andrew Weissmann, who teaches criminal procedure at NYU, said, “If you think of American history, there are sort of defining moments: There’s the actual promulgation of the Constitution, there’s the Civil War. And I think that, without hyperbole, this is a defining moment in terms of having a criminal case [of a former president].”
To be clear, Trump is no stranger to the legal system, and recent civil judgments may cost him nearly half a billion dollars.
The judge in Trump’s New York fraud case orders him to pay $354 million in penalties, plus millions more in interest
But what makes this a defining moment, say Weissmann and Murray, is that he is facing 91 criminal charges in four different courtrooms.
In New York, Trump is accused of falsifying business records. In Washington, D.C., and Georgia, he is charged with allegedly conspiring to overturn the 2020 election. And in Florida, he was indicted for keeping classified documents at his Mar-a-Lago property.
What’s at stake now for Trump is not just his finances, but possibly his freedom.
Murray said, “The fact that we have these four indictments shows that there is an appetite for accountability. But is he too much for the American legal system? I think that’s what we’re going to find out.”
Because overshadowing this tangle of trials is the fact that Defendant Trump is also Candidate Trump.
Robert Ray, a former federal prosecutor who successfully defended Trump when he first faced impeachment in late 2019, said, “I think the country is gonna rue the day that we ever traveled down this road.
What federal prosecutors want is … the public to come to accept that the defendant was afforded fairness. I think there’s a good percentage of the country right now that doesn’t believe that.”
Trump indicted by the grand jury in special counsel Jack Smith’s Jan. 6 investigation
Smith alleges Trump knowingly made false statements about election results in states like Georgia, and according to court filings cites as evidence Trump’s own social media posts, like this one from December 3, 2020, in which he falsely accused Democrats of stuffing ballot boxes:
Smith also alleges “the Defendant lied” to Georgia Secretary of State Brad Raffensperger to induce him to alter Georgia’s vote count in that now-famous telephone call on January 2, 2021. [“I just want to find 11,780 votes, which is one more than we have.”]
But former Trump attorney Robert Ray said a jury may hear that phone call differently. “‘Finding votes’ doesn’t necessarily mean, ‘Find me 11,000 fraudulent votes,'” Ray suggested.
He adds that Trump will argue he was exercising his right to “free speech.” But attorney Weissmann counters that: “I was a prosecutor for many years.
There’s no First Amendment protection in terms of a criminal case. If you are to rob a bank and say, ‘Give me all your money,’ that speech, none of that, is protected.”
Special Counsel Smith announced, “My office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens.” But that “speedy” trial (which was originally scheduled to begin in a federal courtroom in Washington, D.C. tomorrow) ran into a roadblock earlier this year after Trump’s lawyers made a claim that echoed one made by a former president 50 years ago, when Richard Nixon told interviewer David Frost, “When the President does it, that means that it is not illegal.”
Trump asserts he is protected from prosecution by “presidential immunity.” While that claim was initially thrown out by a federal appeals court, Trump asked the Supreme Court to weigh in. And in a win for Trump, just this past week, the justices agreed to hear arguments on the case in April.
Murray affirmed that even a case built for speed can be derailed by delays. “Donald Trump once wrote a book called ‘The Art of the Deal.’ This is the art of delay,” she said. “And he’s played it very well.”
Ray said, “There’s no question that it is desirable politically for Donald Trump to delay these cases until after the election, for obvious reasons. He’s entitled to take that position.”
It’s a strategy that presidential historian Douglas Brinkley says Trump learned from controversial attorney Roy Cohn, chief counsel to Senator Joseph McCarthy in the 1950s, who also represented the Trump Organization in the 1970s.
“What Trump has going for him is that he learned how to stall and defer and postpone, kick the can,” Brinkley said. “But more than that, he learned never to admit defeat.”
But as much as they have tried, Trump’s lawyers have not been able to delay, or dismiss, the case of the People of the State of New York vs. Donald Trump.
Last year, Manhattan District Attorney Alvin Bragg alleged that Donald Trump had falsified records to conceal a bigger crime: election fraud.
“Under New York State law, it is a felony to falsify business records with the intent to defraud and the intent to conceal another crime,” Bragg said. “The defendant claimed that he was paying Michael Cohen for legal services performed in 2017. This simply was not true.”
Instead, Bragg said “hush money” went to pay Stephanie Clifford, an adult film star better known as Stormy Daniels, to buy her silence about an alleged affair with Trump before the 2016 election.
While some legal observers question the strength of the case, Trump’s former lawyer Michael Cohen was convicted of similar charges in 2018, and sentenced to three years in prison.
Jurors chosen for Trump’s trial will likely remain anonymous, and no cameras will be allowed inside the courtroom. What’s more, unlike his previous civil trials, Trump will be required to be in court instead of on the campaign trail.
Murray said, “This is about defending his rights, him showing up in court and being able to mount a vigorous defense to the charges against him. That’s his right as a defendant.”
That won’t keep him from holding court outside, as he did after a recent hearing, when he told the cameras, “Nobody’s ever seen anything like it in this country, it’s a disgrace.”
Ray said “Of course” Trump will use the Stormy Daniels case as part of his campaign: “He has done that about every other stage of these prosecutions. Why would this trial be any different?”
Manhattan D.A. Bragg has already asked the judge to rein in Trump with a partial gag order. But Ray blames the prosecutors for taking a candidate to trial just months before a presidential election.
Moriarty asked, “Are you saying that former leaders should never – when they are running for election – ever be held accountable for alleged crimes?”
“No, but I’m saying that the unusual circumstance that we find ourselves in is that we have four pending indictments in an election cycle,” Ray replied. “That is a result that I think most people would agree is undesirable.”
“But Bob, he gets to bring in his evidence, he gets to cross-examine witnesses, and he could be acquitted. And that would help him in an election year.”
“I think there are questions about whether or not Donald Trump can get a fair trial in the District of Columbia, as there are whether or not he can get a fair trial in Manhattan, given the potential juries,” said Ray.
But Professor Murray is confident that juries made up of American citizens are more than up to the task: “I think very few jurors go into there like, ‘I’m a Democrat.’ ‘I’m a Republican.’ I think they go in there like, ‘I’m a juror, and I’m an American, and this is my civic duty.'”
Supreme Court rules states can’t kick Trump off the ballot
The Supreme Court on Monday handed a sweeping win to former President Donald Trump by ruling that states cannot kick him off the ballot over his actions leading up to the Jan. 6 attack on the Capitol — bringing a swift end to a case with huge implications for the 2024 election.
In an unsigned ruling with no dissents, the court reversed the Colorado Supreme Court, which determined that Trump could not serve again as president under Section 3 of the Constitution’s 14th Amendment.
The provision prohibits those who previously held government positions but later “engaged in insurrection” from running for various offices.
The court said the Colorado Supreme Court had wrongly assumed that states can determine whether a presidential candidate or other candidate for federal office is ineligible.
The ruling makes it clear that Congress, not states, has to set rules on how the 14th Amendment provision can be enforced against federal office-seekers. As such, the decision applies to all states, not just Colorado. States retain the power to bar people running for state office from appearing on the ballot under Section 3.
“Because the Constitution makes Congress, rather than the states, responsible for enforcing section 3 against all federal officeholders and candidates, we reverse,” the ruling said.
By deciding the case on that legal question, the court avoided any analysis or determination of whether Trump’s actions constituted an insurrection.
The decision comes just a day before the Colorado primary.
Minutes after the ruling, Trump hailed the decision in an all-capital-letters post on his social media site, writing, “Big win for America!!!”
In addition to ensuring that Trump remains on the ballot in Colorado, the decision will end similar cases that have arisen. So far, only two other states, Maine and Illinois, have followed Colorado’s path. Like the Colorado ruling, both those decisions were put on hold.
In a statement, Colorado Secretary of State Jena Griswold acknowledged the court ruling “that states do not have the authority to enforce Section 3 of the 14th Amendment for federal candidates. In accordance with this decision, Donald Trump is an eligible candidate on Colorado’s 2024 Presidential Primary.”
The Supreme Court decision removes one avenue to holding Trump accountable for his role in challenging the 2020 election results, including his exhortation that his supporters should march on the Capitol on Jan. 6, when Congress was about to formalize Joe Biden’s win.
Trump is facing criminal charges for the same conduct. The Supreme Court in April will hear oral arguments on his broad claim of presidential immunity.
The ruling warned of the dangers of a patchwork of decisions around the country that could send elections into chaos if state officials had the freedom to determine who could appear on the ballot for president.
“The result could well be that a single candidate would be declared ineligible in some states, but not others, based on the same conduct,” the ruling said.
Although the bottom-line vote was unanimous, there were some divisions on the court, which has a 6-3 conservative majority, as to how the case was resolved. The three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — complained in a jointly written concurring opinion that the court had decided more than it needed to by laying out how Section 3 could be enforced by Congress.
Conservative Justice Amy Coney Barrett agreed that the court went further than required, although she did not join the liberal justices’ opinion.
The liberal justices said the decision could “insulate” Trump from “future controversy.”
The ruling “shuts the door on other potential means of federal enforcement” of section 3, they added.
Barrett said that although she had some disagreements with the rationale, the liberals should not “amplify disagreement” in such a politically charged case. “All nine justices agree on the outcome of this case. That is the message Americans should take home,” she added.
The Colorado court based its Dec. 19 ruling on Section 3, which was enacted after the Civil War to prevent former Confederates from returning to power in the U.S. government.
The case raised several novel legal issues, including whether the language applies to candidates for president and who gets to decide whether someone engaged in an insurrection.
The state high court’s decision reversed a lower court’s ruling in which a judge said that Trump had engaged in insurrection by inciting the Jan. 6 riot but that presidents are not subject to the insurrection clause of the 14th Amendment because they are not an “officer of the United States.”
Trump and his allies raised that point, as well as other arguments that the 14th Amendment cannot be applied. They also argued that Jan. 6 was not an insurrection.
Republicans, including Trump’s primary opponents, broadly supported his claim that any attempt to kick him off the ballot is a form of partisan election interference. Some Democrats including California Gov. Gavin Newsom have also expressed unease about the 14th Amendment provision being used as a partisan weapon.
The initial lawsuit was filed on behalf of six Colorado voters by the left-leaning government watchdog group Citizens for Responsibility and Ethics in Washington and two law firms.
They alleged in court papers that Trump “intentionally organized and incited a violent mob to attack the United States Capitol in a desperate attempt to prevent the counting of electoral votes cast against him.”