James Romoser writes:

Nearly 500,000 people in America are in jail while they await criminal trials. Trump, obviously, is not one of them.

In all four of his criminal cases, he was allowed to remain free with minimal conditions of release.

One of the few conditions — perhaps the central one — is that he must refrain from saying anything that would threaten or harass potential witnesses, co-defendants or jurors. His Georgia bond order, for instance, states: “The Defendant shall perform no act to intimidate any person known to him or her to be a co-defendant or witness in this case or to otherwise obstruct the administration of justice.” It goes on to say that the rule applies to both “direct” and “indirect” threats. Trump’s release conditions in his other cases contain similar admonitions.

Yet Trump has repeatedly used his public soapbox to hurl menacing language that — if uttered by any other defendant — would likely be deemed to have crossed the line.

In August, just three days after he was indicted in the federal election subversion case in Washington, D.C., Trump posted on Truth Social: “If you go after me, I’m coming after you.” In September, he suggested that retired Gen. Mark Milley, former chair of the Joint Chiefs of Staff and a potential witness in the federal election case, should be executed for treason. In October, he attacked Michael Cohen, the star witness against him in his New York case, and he attacked his former White House chief of staff, Mark Meadows, a co-defendant in the Georgia case and a potential witness in others.

And that’s to say nothing of Trump’s relentless verbal attacks on his prosecutors and judges (and their families), many of whom have faced threats to their personal safety.

Prosecutors have raised the alarm about how all of this mudslinging poses grave risks — of pressuring witnesses, polluting the jury pool and even stoking potential violence. Trump’s lawyers, in turn, have insisted that, as a presidential candidate, he must have wide latitude under the First Amendment to criticize his adversaries. Judges have imposed various gag orders, crafted and recrafted in careful legalese, that attempt to demarcate exactly what Trump can and cannot say. But no one has seriously attempted to revoke his pretrial release and send him to jail.

Similarly situated high-profile defendants have not had so much luck. Take, for instance, Sam Bankman-Fried: While awaiting trial for securities fraud, he had his bail revoked and was immediately ordered to jail after he contacted a potential witness and provided information to the press about a government cooperator.

“Whatever you think of those actions, they don’t come close to the kinds of attacks that Trump has leveled against anticipated witnesses in the Manhattan trial, like Michael Cohen, for example,” Noam Biale, a criminal defense lawyer at the law firm Sher Tremonte, told me.

“Nor did Bankman-Fried have the capacity to inspire followers to commit acts of violence,” Biale added. “So I think it’s pretty obvious that if other defendants acted in the manner Trump has, their bail would be revoked and they’d be forced to defend the case from pretrial detention.”

The judiciary’s unique solicitude to Trump runs all the way up to the Supreme Court.

In February, the high court effectively stalled Trump’s federal election subversion trial for at least several months so that the justices can weigh Trump’s claim that he has “presidential immunity” from the charges. Every lower-court judge to consider Trump’s immunity theory — that he can’t be charged with essentially any crime for actions he took in office — has rejected it. And many legal scholars have described the claim as so unserious that even the very conservative Supreme Court, typically receptive to robust claims of executive power, is unlikely to adopt it.

But merely by taking up the issue at all — and by refusing to do so on the accelerated basis that special counsel Jack Smith originally requested — the justices have handed Trump a potentially huge victory. It’s no secret that he is seeking to run out the clock in all of his cases until Election Day. And the Supreme Court’s handling of the immunity issue has significantly increased the odds that voters will go to the polls in the next election before a jury weighs in on Trump’s attempts to overturn the last election.

As University of Chicago law professor Aziz Huq has shown, the Supreme Court’s conduct here is all the more confounding because it contradicts the court’s usual approach in criminal cases. Defendants routinely ask the high court for additional judicial review in the hopes of delaying or avoiding criminal punishment, and the court is rarely receptive to the arguments of those defendants — at least the ones not named Trump.

Trump enjoys yet another advantage that literally no other criminal defendant possesses: the fact that he personally appointed some of the key decision-makers in his cases.

Three of the nine Supreme Court justices are Trump appointees, and so is the judge presiding over the classified documents case, Aileen Cannon. [Continue reading…]