If American democracy succumbs to a Donald Trump dictatorship, it may well be because the legal system was too slow to prevent it. It has been over three years since the 45th president dispatched a mob to Congress to overturn his defeat, pushed Georgia’s Secretary of State “to find, uh, 11,780 votes,” and purloined classified documents with no intention of returning them. Only now is he facing the legal consequences of those actions. The slow wheels of justice have left democracy in peril.
Were Trump a private citizen, the severity of the crimes with which he is charged and the overwhelming evidence against him would be dire, if not inescapable. But as the presumptive Republican presidential nominee, Trump has a curious lifeline if he wins the White House. He could attempt to pardon himself and browbeat state officials to pardon him for his non-federal crimes.
Neither is a sure bet: the power of a president to pardon themselves is untested and under debate. The issue would undoubtedly go to the Supreme Court, which might conclude the president remains in legal jeopardy or decide that prosecution be delayed while he completes his term, or it could well rule that presidents can pardon themselves. So, if Trump wins, he may well get away with everything, setting a precedent for himself and future presidents.
The American voter will now functionally decide whether Trump is a dictator or a convict—even though it should be left to judges and juries, not voters weighing competing issues.
They will not make this decision as a jury would, with all the admissible facts. First, most Republican voters aren’t even aware of most of Trump’s legal matters. Yes, each new indictment boosts Trump’s fundraising and his poll numbers at least once within the most ardent corners of the GOP base. But only a minority of Republican voters know about these problems, and then only incompletely, because conservative media chooses not to cover them frequently or intensely. The number of independents aware of Trump’s legal woes is only marginally higher.
Voters will indeed become more aware of Trump’s travails as the campaign progresses, with potentially grave repercussions for the GOP if Trump is convicted of a felony. Polling indicates that large swaths of the country, including a majority of voters in swing states, would refuse to vote for a felonious Trump.
Will Trump face even one of the felony cases against him before November 6? Trump’s attorneys have been diligent at delay, and the lethargy of prosecutors has made a trainwreck of the legal and electoral timetables. There likely isn’t time to prosecute these cases before the election. After the election, if Trump wins, they will be a moot.
The January 6 case against Trump is arguably the most important. So it bodes ill that his March 4th trial date was just removed from the calendar due to delays arising from Trump’s appeal on the grounds of presidential immunity. While the D.C. Circuit Court of Appeals rebuffed Trump for his sweeping claims of presidential immunity, the Supreme Court has yet to decide if it will take the case, hear arguments if it does, and then rule. This means the January 6 trial is less likely to conclude before Election Day, although it’s still possible if the Roberts Court moves swiftly.
The New York State case surrounding Trump’s hush money payments to Stormy Daniels, the adult film actor, is set to take its place on the calendar. It seems next month is likely, which is good. New York District Attorney Alvin Bragg is prosecuting 34 felony counts against Trump for falsifying business records. The nine-figure penalties on Trump may well deplete his cash, but they seem unlikely to stymie his campaign. Cases like the Daniels prosecution and the business record falsification are unlikely to to surprise swing voters who have internalized Trump’s womanizing and loose business dealings as part of his persona.
The powerful case against Trump for stealing classified documents is stymied thanks to Trump-appointed judge Aileen Cannon, who has used extraordinary tactics to sabotage and delay proceedings, shielding Trump from facing trial before the election.
Perhaps the most obvious case of criminal wrongdoing by Trump is his demand that Georgia Secretary of State Brad Raffensperger find votes to deliver him the state. Fulton County District Attorney Fani Willis has leveled expansive state charges against not only Trump but also his attorney, Rudy Giuliani, and his last White House Chief of Staff Mark Meadows. But the broad scope of the case, built on Georgia’s version of the RICO statute, virtually ensures that it will be delayed into next year in deference to the federal prosecution, and that was before Willis herself ended up in the hot seat for her relationship with a fellow prosecutor.
Arguments abound over whether the delays in prosecuting Trump were due to diligence or dithering. Either way, however, the inability of the justice system to hold Trump accountable before election day may prove fatal to the cause of justice. Justice delayed may mean democracy denied.
