Jan.06

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Dem 47

   

GOP 53

It's Jan. 6—Again

A day that will live in infamy. No, wait, that slot has been taken already. How about: A day that ought to live in infamy but probably won't? Not as catchy, but it's the best we could come up with. We sometimes get questions about who was the smartest president or the richest president or the best president or the worst president, but let us pre-answer the question: "Who was the luckiest president?" Hands down it is Donald Trump. Some presidents are elected in a time of peace and prosperity and they just coast on it, but it doesn't always work due to something over which the president has little or no control (see: Carter, Jimmy). Donald Trump, on the other hand, had complete control over the actions that might have led to consequences which he has so far escaped.

After setting up slates of fake electors to stay in power after losing an election (Plan A) and then egging on a mob to sack the Capitol (Plan B) once Plan A failed, Donald Trump broke a whole bunch of laws. He was duly indicted in multiple jurisdictions (and almost indicted in others) for these crimes and other ones and sued civilly multiple times. Have there been any consequences for him for all his criminal behavior? Yup. He was elected president again, tying Stephen Cleveland's record for most times regaining the presidency after losing it. How did he pull this off? He was extremely lucky.

Here is a brief rundown of some of the criminal and civil cases against Trump and how luck played a role there:

• Federal Insurrection Case: This is the biggest and potentially most problematic case. Trump was indicted for conspiring to defraud the United States (by trying to steal an election he clearly lost). The evidence, both in terms of eyewitness testimony and recordings, was overwhelming. Yet Trump will probably get away with it. How come? He was lucky. First, AG Merrick Garland dawdled much too long in dealing with it, even though he initially said he was appalled by the whole series of events. Then, he finally appointed Jack Smith as a special prosecutor on Nov. 18, 2022, about 22 months after the crimes were committed. Garland could have appointed Smith the day after his own confirmation (March 10, 2021). In a way, Trump was lucky even earlier. If then-Majority Leader Mitch McConnell had allowed Garland's Supreme Court nomination to come up for a vote in 2016 after Antonin Scalia died suddenly on Feb. 13, 2016, Joe Biden would have chosen a different AG who might not have been so scared to move the case along.
  
  Finally, Trump got very lucky when the Supreme Court decided to take up his claim that presidents are like kings and can't be prosecuted, then also dawdled on rendering a decision, and finally ruled that presidents are kind of king-lite, and can't be prosecuted for doing things sorta, kinda, related to being, well, president. The Court could have refused cert with a sharp note: "No one is above the law, not even the president."
  
  
• Georgia Insurrection Case: This case was potentially the most damaging to Trump because presidents can't pardon people for state offenses. If he had been nailed here, it is likely he would have been sentenced to state prison. In what has to be one of the worst unforced errors in all of American jurisprudence, Fulton County D.A. Fani Willis, who had an ironclad case against Trump and 18 co-conspirators, hired her boyfriend as lead prosecutor. This was foolish beyond all belief. Not only was said boyfriend not a prosecutor, but he was a generic lawyer who handled criminal defense and personal injury cases. If Willis had been dating Jack Smith or Andrew Weissmann, she might have been able to say: "I picked the toughest prosecutor in America to lead the case," but then-boyfriend Nathan Wade was the wrong guy for the moment. And even if she had been dating an industrial-strength prosecutor, she should have known that in such a high-profile case, she had to avoid even the appearance of impropriety. To make it worse, she wasn't doing Wade a real favor. He said he was making more money doing criminal defense and personal injury cases than the State of Georgia was paying him. How could she make such a mistake? Apparently, love is not only blind, it is also stupid.
  
  The judge in the case admonished Willis but kept her on the case. Trump appealed that decision and on Dec. 19, 2024, the appeals court sided with Trump and kicked Willis off the case. She has appealed to the Georgia Supreme Court. But even if she wins, there is no way she can prosecute a sitting president. Best-case scenario for her is to drop Trump and prosecute all the others except those that have flipped. So Trump lucked out here.
  
  
• Florida Documents Case: In the case where Trump was caught with his pants down, actually in his bathroom at Mar-a-Lago, where he stored all the secret documents he took with him after leaving the White House, he was again very lucky. By random chance, the judge assigned to the case was Aileen Cannon, an inexperienced, ambitious, and opportunistic judge he appointed himself. She made multiple rulings in his favor that the U.S. Court of Appeals for the Eleventh Circuit batted down. Then she, too, dawdled endlessly. In the end, she ruled that the special prosecutor law, which has been in place since Watergate, was unconstitutional, something no other judge believes. She was obviously making a bet that Trump would win the election and then appoint her to the circuit court at his first opportunity. It could yet happen. It was just dumb luck that Trump got such a Trumpy judge in the first place. There are plenty of other judges in Florida who would have put him on trial with no delay. As an aside, if Pam Bondi is confirmed as AG and appoints a special prosecutor to go after any of Trump's enemies, the judge could throw out the case, citing Cannon's ruling. This will force the Supreme Court to take the case and decide if special prosecutors are legal.
  
  
• New York Documents Case: The hush-money case in New York was about Donald Trump's paying Stormy Daniels $130,000 to keep quiet about their 90-second affair in 2006. If Trump had just paid her out of his own pocket, it would have been a private contract between two consenting adults and perfectly legal. Instead, he got his fixer, Michael Cohen, to pay her off and then used company money to pay Cohen $420,000 as reimbursement for legal services rendered (including paying his taxes on the reimbursement and a small bonus for work well done). Trump tried to cover this all up in the company bookkeeping, and this fake accounting violated New York State commercial law.
  
  Then-Manhattan D.A. Cyrus Vance started to prosecute Trump in 2018 after Cohen went public with the story. Vance had a reputation for being fierce and merciless, but he retired in 2021, which was a lucky break for Trump. The new Manhattan D.A., Alvin Bragg, had no interest in pursuing the case, which so infuriated the two lead attorneys working on it, Mark Pomerantz and Carey Dunne, that they quit. Much later Bragg took up the case again and got 34 convictions. But if Vance had not decided to retire or Bragg had taken over the reins and immediately told Pomerantz and Dunne to go full speed ahead, Trump would have been convicted years earlier and would probably be in prison now. The case is not over yet. See below for more on it, but it is unlikely that Trump will go to prison on any of the 34 charges he was convicted on.
  
  
• Arizona fake electors case: Georgia isn't the only state prosecuting people involved in the attempted coup. Arizona is another one. Arizona AG Kris Mayes has indicted the 11 fake Arizona electors. But she didn't stop there. She also indicted seven of Trump's close associates: Christina Bobb, John Eastman, Jenna Ellis, Boris Epshteyn, Rudy Giuliani, Mark Meadows and Mike Roman. Trump was not indicted but was listed as an unindicted co-conspirator. He lucked out here. Mayes could have indicted him but chose not to.
  
  Trump got a second lucky break here, too, as well. The judge assigned to the case, Bruce Cohen, was moving it along nicely. Jenna Ellis, who was at the center of the case and knows everything, flipped. So did one of the fake electors. Their testimony would surely be enough to convict all the others and show for the historical record that Trump knew about everything. Then Cohen did something stupid. Not Willis-level stupid, but still stupid. He sent an e-mail to other judges urging them to call out the people attacking Kamala Harris on account of her race or sex. Yes, judges have the same right as everyone else to air their political views, but when you are a judge in such a high-profile case, sometimes discretion is the better part of valor. Just keep it to yourself. The other judges are surely capable of making their own decisions on when to speak out. And for heaven's sake, if you can't keep quiet about this, tell the other judges at lunch. Don't put it in written form (email) that can be discovered later. Needless to say, some of the defendants filed a motion claiming Cohen was biased and should recuse himself from the case. In November, he did just that and was replaced by Judge Sam Myers. Myers will have to start all over again, which will delay the trial until 2026. If Cohen hadn't come out defending Harris, the trial would have been in 2025.
  
  
• Michigan fake electors case: Michigan AG Dana Nessel indicted the 16 Michigan fake electors in July 2023. She didn't indict Trump, but she could have, just as Fani Willis did.
  
  
• Bank fraud civil case: The above cases are all criminal. They could result in the defendants going to prison. But there is more. In Sept. 2022, New York AG Letitia James sued Donald Trump for defrauding New York banks. She won the case and Judge Arthur Engoron ordered him to disgorge his ill-gotten gains of $355 million. That hits Trump where it hurts: in his wallet. He appealed, but had to post a bond of $355 million to let the appeal proceed. He sued, saying the bond was too much. Trump got lucky again. The appeals court, in an unusual ruling, lowered the bond to $175 million and Trump found someone else to post it. The appeal on the case is ongoing.
  
  If Trump loses the appeal, he can appeal again to the New York Court of Appeals. If he runs out of appeals, there will be a legal question of whether a state attorney general can seize the property of a sitting president. That could go on for years.
  
  
• Defamation civil case: When E. Jean Carroll said that Trump raped her in the 1990s, he called her a liar. She sued him for defamation. On Nov. 24, 2022, a jury ruled that what Trump did to Carroll was considered sexual assault rather than technically rape under New York's definition of rape, but still awarded her $5 million. After reading the decision, the judge noted that what Trump did is called "rape" by most people and by many states, just not New York State. Trump responded to the jury's decision by continuing to call her a liar. Those comments were added to Carroll's already-pending suit for comments he made while he was president and this time a different jury awarded her $83 million. The case is on appeal. If she wins it, collecting damages against a sitting president could be tricky if Trump fights it all the way, which he is certain to do. His luck here is that his lawyers will surely make a case that presidents are immune to everything always, even things that happened long before they became president. It is important to note that his legal strategy is not to focus on winning, but to focus on delaying the final resolution so long that the other side gives up. It usually worked in the past, so why not now? Still, he has gotten many lucky breaks along the way that have helped him immeasurably.
  
  

And by the way, today Congress will count and certify the electoral votes. It is expected to be somewhat calmer than last time around. (V)