Even under the best of circumstances, a criminal trial of a former head of state is a fraught exercise. And, for a number of reasons, the four trials of Donald Trump are happening decidedly not under the best circumstances.
Consider the federal judiciary itself, which will oversee at least two of Trump’s trials (and which may also wind up hearing the new charges just filed against Trump in Georgia). Trump filled those courts with judges who range from conservative outliers within the legal profession to outright hacks. And that’s also true of the federal appeals courts that will review many decisions made by federal trial judges in the Trump prosecutions.
For the better part of the last decade, moreover, Republicans have made it crystal clear that the Supreme Court is a partisan prize awarded to the political party that does the best job of playing constitutional hardball.
In 2016, after Justice Antonin Scalia’s death gave Democrats their first chance in a generation to control the Supreme Court — and with it the federal judiciary — Senate Republican Leader Mitch McConnell announced that no nominee would receive a confirmation hearing until after that year’s presidential election. He claimed that this newly invented rule against election-year confirmations was necessary to ensure that “the American people have a voice in this momentous decision.”
Yet, after McConnell successfully held this seat open until Trump could fill it, Republicans reversed course when Justice Ruth Bader Ginsburg died fewer than two months before the 2020 election that cast Trump out of office. Republicans didn’t just give Trump nominee Amy Coney Barrett a confirmation hearing, they raced to confirm her just eight days before the election.
Unsurprisingly, the Court’s political standing is now at its lowest ebb. Gallup recently found disapproval of the Supreme Court at its highest point since the polling company started asking people if they approve of the Court. And other pollsters confirm that confidence in the justices is at an all-time low.
Much of the Court’s low approval is driven by Democrats, and likely stems from the fact that, after rising to power under the most dubious circumstances, the Court’s Republican-appointed majority spent the last three years settling old grudges, eliminating longstanding rights, and handing down party-line decisions backed by the thinnest legal arguments. Though, to be clear, the growing disdain for the Court is hardly limited to left-leaning voters. A June Quinnipiac poll found that nearly 70 percent of registered voters believe the justices are “mainly motivated by politics.”
As Democrats despair over a judicial system stacked with Republican partisans, Trump is doing his best to further undermine faith in the federal judiciary. To give just one example, almost as soon as his Washington, DC, trial for attempting to steal the 2020 election was assigned to Judge Tanya Chutkan — an Obama-appointed judge known for handing down tough sentences to participants in the pro-Trump January 6 attack on the US Capitol — Trump started attacking Chutkan for supposedly being biased against him. This is a common tactic used by the former president.
Any trial of a former head of state would be a difficult endeavor. Anyone elected to the nation’s highest office is likely to have many loyal supporters throughout the country, who will be skeptical of claims that their political leader is actually a criminal. And, in the United States, any former president will have appointed a significant percentage of the federal judiciary.
And again, Trump’s criminal trials will not be heard under the best of circumstances. Trump may try to rally his supporters to commit acts of violence similar to the January 6 attack on the Capitol. Many of Trump’s judges aren’t just unusually conservative, they show little regard for the rule of law. And, in part because the United States has never tried a former president before, Trump’s criminal trials are likely to produce a raft of novel legal questions that can be readily appealed to higher courts — including the hyper-politicized Supreme Court.
On top of all of this, at least one of the former president’s trials will be overseen by Judge Aileen Cannon, a Trump appointee who has previously behaved like she is a member of Trump’s legal defense team.
It is far from clear, in other words, that the judiciary enjoys enough public trust that it can endure the political strain Trump’s trials will put on its spine — even assuming that every judge who hears one of Trump’s criminal cases acts in good faith.
Very high-profile trials tend to raise unique legal questions
One reason to worry about what appellate judges, including the justices of the Supreme Court, might think about Trump is that criminal trials involving famous criminal defendants often present unusual legal questions that don’t typically arise in other cases. And Trump isn’t just famous, he’s the first former president ever to be indicted. And he’s a current candidate for the presidency.
These unique facts are likely to produce unprecedented legal questions that will need to be resolved by appellate courts. And that gives the justices an unusual amount of ability to sabotage these prosecutions if they chose to do so.
Consider, for example, how the jury selection process is likely to work in Trump’s criminal trials. Before jurors are seated, they will be questioned by counsel on both sides of the case, and potentially by the judge, in a process known as “voir dire.” Ordinarily, one of the primary purposes of voir dire is to screen out jurors who may already be familiar with the defendant, who may already know some of the details of the case, or who otherwise might have prejudged the defendant’s guilt or innocence.
In unusually well-publicized trials, however, this process can break down. Take what happened in the 1992 trial of four Los Angeles police officers charged in the brutal beating of Rodney King. This beating was captured on videotape, and the tape was widely broadcast on national news stations — meaning that, by the time the case actually reached trial, most of the country had seen extraordinarily persuasive evidence that the four officers were guilty.
But the fact that so many potential jurors had already concluded that the officers were guilty wound up being a huge problem for the prosecution. As Terri White, the lead prosecutor in this case, later told Slate, prospective jurors who already thought the cops broke the law were eliminated, leaving “people who basically say, ‘I haven’t made up my mind,’ as opposed to most of the people who saw the video and said, ‘this is outrageous.’”
The jury that let these officers go free, in other words, was made up of those rare individuals who watched the video of King’s beating and weren’t sure if the cops had done anything wrong. Rather than producing an unbiased jury, the jury selection process wound up producing a jury that was unusually biased in favor of the police.
It’s not hard to see how a similar process could play out in Trump’s trial. A CBS poll taken after Trump was indicted for attempting to steal the 2020 election, for example, found that 51 percent of the country believes that Trump tried to “stay in office by illegal means.” Eliminate those jurors from the jury pool, and you wind up with a jury that’s unavoidably skewed toward Trump.
During voir dire, both prosecutors and defense counsel may ask the judge to remove a juror that they think might be impermissibly biased “for cause.” But how, exactly, is a judge supposed to screen for bias in a trial involving a recent president?
Suppose, for example, that a potential juror testifies that they voted for Trump twice and once attended a Trump rally, but that they believe they can still be impartial. Should this juror be removed for cause? What about a Biden voter who donated to the incumbent president’s campaign? Or a juror who testifies that they are a regular Fox News watcher? Or a juror who marched in a protest against Trump’s immigration policies?
A judge like Aileen Cannon, the Trump judge overseeing the trial alleging that Trump illegally retained classified documents, could potentially try to stack the jury with MAGA stalwarts by granting all of the defense’s requests to exclude a juror, while simultaneously denying meritorious requests from the prosecution. But even if all the judges hearing Trump trials behave honorably, this particular jury selection process will almost inevitably raise unique legal questions that have not previously been addressed by other courts. And that’s an invitation for appellate courts to get involved.
And this is just one area where a trial of a recent former president could raise unprecedented legal questions. In media appearances, for example, Trump’s lawyers have suggested that the DC prosecution for Trump’s attempt to steal the 2020 election violates the First Amendment. This claim is frivolous, but it’s easy to see how legitimate First Amendment questions could arise out of a criminal trial where the defendant is also actively campaigning for the presidency.
In any event, there’s no need to identify every appealable legal issue that might arise during Trump’s many criminal trials. The point is simply that lots of these issues are likely to arise. And, because the United States has never before prosecuted a former president, there may not be case law laying out exactly how the courts are supposed to resolve these questions.
Those are the very circumstances where appellate judges are freest to do whatever they want.
The Supreme Court — and the Republican Party — has spent the last several years destroying the judiciary’s legitimacy as an impartial institution
There are many reasons to fear that a politicized judiciary may not approach Trump’s trials in a neutral and nonpartisan way. If you want a list of reasons to fear that at least one court might trip over itself to help Trump, for example, I encourage you to read my explainer on Judge Cannon, and her earlier efforts to sabotage the Justice Department’s investigation into Trump’s retention of classified documents.
Another reason to worry that these courts cannot carry the political burden of a Trump prosecution is that Trump could potentially bring a meritorious appeal to the Supreme Court if he is convicted. But, if this Court tosses out Trump’s conviction, Democrats have no reason to trust that decision or to believe that it was reached for legitimate reasons — especially if the decision is handed down in a 6-3 vote along familiar partisan lines.
The non-confirmation of then-Judge Merrick Garland, Obama’s nominee to replace Justice Scalia, the subsequent installment of Trump Justice Neil Gorsuch to this seat, and the Republican Party’s cynical decision to exempt the Barrett nomination from the same made-up rules they used to spike Garland’s nomination, all leave little doubt that the Supreme Court is a partisan institution. Why else would Republicans have fought so hard to ensure that both of these seats — and the Court’s majority as a whole — would be held by their own appointees?
For much of its three years in power, moreover, the Court’s new majority has behaved as if they are conquering heroes who enjoy overwhelming national support for a legal revolution (though, in fairness, there are early signs that the Court may be moderating on voting rights).
Among other things, this Court has given itself an effective veto power over all actions by federal agencies — including against actions, such as President Joe Biden’s student loan forgiveness program, that are unambiguously authorized by federal law. It’s manipulated the law, and even lied about the facts underlying its decisions, to benefit Republican constituencies such as the religious right. And, in a decision that is so unpopular it may shatter the GOP’s political coalition, the Court’s new majority voted to overrule Roe v. Wade and eliminate the right to an abortion.
This last decision is notable because the five Republican appointees who voted to overrule Roe all did so despite a very prominent warning that, if Roe were overruled, it could crush public respect for the judiciary.
In 1992, much like in 2022 when the Court handed down its decision overruling Roe, Republican appointees had a solid majority on the Supreme Court. That majority was widely expected to eliminate the right to abortion when a case asking the Court to overrule Roe arrived on their docket. Instead, the Court largely stayed its hand, with three relatively moderate Republicans — Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter — co-authoring the Court’s decision in Planned Parenthood v. Casey that upheld Roe with some new restrictions.
As these three justices wrote in Casey, overruling Roe “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”
The Casey decision could have been written in 2022, after the Court’s membership was reshaped by Republicans playing constitutional hardball. Under such circumstances, Casey warned, “only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling [Roe] was anything but a surrender to political pressure.” But it is obvious that Roe is dead, not because some clever lawyer came up with some devastating legal argument that convinced the justices to reconsider their previous position, but because the Court was stacked with justices who came there to overrule Roe v. Wade.
Indeed, one person who agrees that the Court’s decision to overrule Roe was pure partisan politics is Donald Trump. Last May, Trump urged his fellow Republicans to renominate him for the presidency because “after 50 years of failure, with nobody coming even close, I was able to kill Roe v. Wade.”
But, while Trump’s justices helped the Republican former president keep his political promise, they did so over Casey’s warning that such a decision to overrule a seminal precedent “would subvert the Court’s legitimacy beyond any serious question.”
The Court’s own attempts to defend its behavior, moreover, have ranged from vaguely menacing to unintentionally hilarious. Justice Samuel Alito, for example, attacked the “organized bar” for joining in some of the widespread criticism of the Supreme Court.
Meanwhile, Barrett gave a speech in 2021 where she argued that her Court is “not comprised of a bunch of partisan hacks.” She delivered these remarks at the University of Louisville’s McConnell Center, which is named for Senate Republican Leader Mitch McConnell. And she delivered them as McConnell gazed admiringly upon her from the same stage.
Amy Coney Barrett argues Supreme Court isn’t driven by politics, after being introduced by Mitch McConnell at at event celebrating the anniversary of the McConnell Center. https://t.co/mVIhqPY5iE
— Greg Stohr (@GregStohr) September 13, 2021
One consequence of the Court’s behavior over the last three years is that few Democrats are likely to respect a Supreme Court decision tossing out a Trump conviction, or otherwise giving aid and comfort to his defense team, even if that decision is correct as a matter of law.
Like the Boy Who Cried Wolf, this Court has frittered away its credibility on partisan rulings that have no plausible basis in law. It has worked its way through the last 50 years of controversial Supreme Court decisions as if they were a checklist, replacing liberal victories with conservative ones. And it ignored the warnings offered by wiser Republicans in Planned Parenthood v. Casey.
The Court, in other words, has reaped the whirlwind. And it has no credibility left if it needs to vacate a Trump conviction.
So what happens now?
At least in the short term, Trump’s trials will proceed forward. Judge Cannon will hand down decisions based on whatever kind of idiosyncratic legal reasoning goes on in her brain. And Trump will almost certainly find ways to attack any trial judge who seems likely to treat him like any other criminal defendant.
But once the juries in these trials start handing down verdicts, things could get harrowing. Trump’s supporters have already shown that they are willing to engage in mass acts of violence when government proceedings do not go Trump’s way. Just look at what happened on January 6.
Meanwhile, there is at least some risk that a decision acquitting Trump could lead to mass demonstrations and even violence, as could a decision by an appeals court that tosses out that conviction on dubious grounds. Just look at what happened in Los Angeles after Rodney King’s assailants were rescued by a court proceeding that was justifiably viewed as unfair by the people of LA.
The courts are supposed to ensure that disputes over who deserves punishment will be resolved peacefully. A trial is supposed to replace direct action by those demanding justice and by those demanding mercy. But the courts can only serve this function when ordinary citizens trust them to be fair and impartial.
We no longer have that kind of judicial system in the United States of America.