If, as seems likely, Donald Trump is the Republican presidential nominee next year, the 2024 elections will be a referendum on several crucial issues: the prospect of authoritarianism in America, the continuation of a vibrant democracy, the relationship between the executive branch and the other two branches of government, and much else of grave significance.
It will also be a referendum on whether Trump will ever be held legally accountable for his actions. Trump faces multiple civil suits and at least two criminal indictments (with two more seemingly just over the horizon). If Trump were to win reelection, it is almost certain that none of these will ever be resolved—at least not in a way that is adverse to his interests, which any reasonable system would admit as a possibility. Such is the power of the presidency.
Take the simplest cases first: his pending indictment in Florida for violations of the Espionage Act relating to the retention of classified documents, and his anticipated indictment for actions relating to the January 6 insurrection. If Trump is elected, neither of these cases will ever result in a final judgment of Trump’s guilt (much less incarceration).
The Mar-a-Lago documents case is set to go to trial in May 2024. Although many people suspect, not without foundation, that this trial date will slip, let us indulge the possibility that the trial occurs as scheduled and that sometime in June or July 2024, a jury convicts Trump. There is virtually no doubt that Trump would appeal such a verdict, and there is likewise almost no doubt that the presiding judge, Aileen Cannon, would allow him to remain free on appeal.
I have handled several criminal appeals in my career. None has ever been resolved, in even the simplest of cases, in less than a year. That’s just the way our appellate system works; there is no sense of urgency to the proceedings at all (nor, to be clear, should there be in the normal course of business—the trial has concluded and the record is complete; a mature and thoughtful review of those proceedings requires time). The result is that Trump’s appeal of his federal conviction (assuming one is secured) will quite likely still be pending before the Eleventh Circuit, the court with appellate jurisdiction over federal trials in Florida, at least through mid-2025—well past the election and into the next presidential term. And even were an appeal to be concluded quickly, Trump would inevitably then petition the Supreme Court for review, taking yet more time. [Continue reading…]