Last time: will there be a second time?

A very good week

Instead of fighting in the ballot box, the Democrats fight in the courts. It is almost as if they want Trump re-elected, writes Daniel Lazare

For Donald Trump, things are all clicking neatly into place:

The news is even better on the legal front, where Trump is racking up a string of victories in cases stemming from the January 6 Capitol Hill insurrection, his possession of thousands of classified documents, his efforts to tamper with election results in Georgia, and attempts by Colorado and other states to bar him from the ballot on the grounds that he has been caught red-handed in the act of insurrection.

To be sure, Trump is facing yet another trial over $130,000 in hush money that his lawyer, Michael Cohen, paid to porn star Stormy Daniels in the final days of the 2016 presidential campaign. But the case, which is scheduled to begin on March 25, is hardly more than a buzzing mosquito at this point, because it involves charges that even inveterate Trump haters regard as weak.

The reason is that Alvin Bragg, the Manhattan district attorney (DA), is out to prove not only that the payoff was embarrassing, unseemly, tawdry, etc, but a secret campaign contribution in violation of the law. The problem is that he is accusing Trump of violating state election law, even though he was running for federal office at the time - and even though the federal government’s own election commission decided that the case was such a stretch that it was not worth pursuing back in 2021.

Why would a local DA take on a federal case that the feds rejected? All we know is that Bragg, who ran for DA on a get-Trump platform, is under intense pressure to do something - anything - to bring the big man down. So, if a flimsy far-fetched case is the best he can come up with, it will have to do. Still, it is a last-ditch effort to hold together a Democratic legal offensive that is coming apart at the seams.

Legal wars

America’s legal wars are increasingly complex, so it is necessary to run through the cases one by one.

First up is the Supreme Court’s epic decision on March 4 to strike down Colorado’s bid to remove Trump from the ballot. Colorado’s reasoning seemed simple enough. Section three of the 14th amendment, adopted in 1868, says that no-one may occupy “any office, civil or military”, if he has “engaged in insurrection or rebellion”. Since January 6 was plainly aimed at overturning a presidential election, then rebellion is precisely what Trump was up to. Hence, he is ineligible to run a second time around.

“All vice-president Pence has to do is send back to the states to recertify and we become president and you are the happiest people,” Trump told a rightwing mob shortly before sending it rampaging through Congress. A coup d’état, the first in US history, is thus plainly what he had in mind.

But there are problems. One involves the failure of the US Senate to convict Trump in his impeachment trial five or six weeks after the uprising. While 57 senators voted in favour, that was 10 votes shy of the two-thirds majority required under another section of the US constitution - article I, section three. The Senate is corrupt and unrepresentative in the extreme, so it is not surprising that it failed to uphold democracy. But the effect was to place Trump in legal limbo. He may look like an insurrectionist and sound like an insurrectionist, but acquittal means that he lacks the official stamp.

Another problem concerns political retaliation. If liberals had got away with removing Trump in Colorado, then conservatives would undoubtedly have struck back by removing Biden in Texas and other states. If payback had spread, the race would have devolved from a two-man contest to a series of single-party elections in the separate states.

Democrats - the party of federal authority über alles - were thus championing the ability of individual states to effectively cancel a national election. The decision by the Supreme Court’s three remaining liberals to make the anti-Colorado decision unanimous shows the madness of the approach. The gods first make crazy whom they then set out to destroy.

On the other hand, the fact that the court is disregarding a major Reconstruction Era reform has dangerous implications of its own. With Texas insisting on its right to make its own foreign policy in the ongoing border standoff, it is a sign of how the Old Confederacy is beginning to re-emerge, as if the Civil War had never taken place. With Trump egging Texas on and liberals trying to undermine the election, US democracy is a candle burning at both ends. Neo-Confederates are having a field day, while liberals are lost.

Trump’s second legal victory concerns the Democratic goal of putting him on trial before the presidential campaign hits high gear this summer. With polls showing that Americans are reluctant to vote for a convicted felon, the hope was that legal defeat would lead to political defeat, which would banish the Trump threat once and for all. How Trump was supposed to bounce back and forth between campaign events and three or four criminal trials was left unexplained. Equally unknown was how he would not emerge from the ordeal as even more of a rightwing martyr than he already is. Not only were Democrats determined to follow through, however, but the bourgeois-liberal concept of the rule of law, which grants judicial bodies a high degree of autonomy, ensured that the process would proceed on automatic pilot.

But now it is crashing. In the January 6 trial in Washington, the breakthrough occurred when ‘the Supremes’ announced on February 28 that they would consider Trump’s claim that the doctrine of presidential immunity renders the case inoperative, because he cannot be held liable for acts committed while in office. Democrats regard the argument as Kafkaesque, since it means that Trump is exempt from prosecution by virtue of heading up the government that he was simultaneously trying to overthrow.

They are right, of course. But they would be on stronger ground if the Senate had voted to convict in 2021. Not only is Trump betwixt and between as an apparent, but not quite, insurrectionist, but his actions on January 6 are similarly ambiguous. The immunity question is more complicated than Democrats want us to believe.

Besides, US presidents commit illegal acts all the time. The constitution, for instance, places the power “to declare war” squarely in the hands of Congress. But that did not stop Thomas Jefferson from going to war against the Barbary pirates in 1803 without congressional authorisation, or subsequent presidents doing the same ever since. Bill Clinton bombed a Sudanese pharmaceutical factory in 1998 for reasons that Washington subsequently admitted were untrue. George W Bush invaded Iraq on equally false pretences. Barack Obama held regular ‘Terror Tuesday’ meetings to decide which US enemy to drone next, all without a formal declaration of war.2 Yet none suffered legal consequences. So why should Trump?

In any event, the Supreme Court’s decision to schedule oral arguments in late April means that a trial is unlikely before late June at the earliest, even if it decides Trump is wrong from top to bottom. Since that is when the presidential campaign goes into high gear, the real news is that it is unlikely to take place until after November. And if Trump becomes president, it will not take place at all, since a Trump-run department of justice is sure to quash it in an instant.

Then there is the federal case in Florida, in which Trump is accused of making off with boxes full of classified federal documents that he then stored in various nooks and crannies at his Mar-a-Lago mansion in Palm Springs, Florida. Jack Smith, the prosecutor in that case as well, is also pushing for a quick trial. But a federal district judge named Aileen Cannon threw a roadblock in the way on March 4 by ruling that Trump’s legal team needs more time to comb through thousands of files to prove that the “intelligence community” is out to get him.

This is also Kafkaesque, according to Democrats, since it means that an apparent insurrectionist will be able to review thousands of classified files to show he was justified in making off with thousands more. But, considering how the ‘Deep State’ leaked like a sieve in order to feed Russiagate hysteria in 2017-19, Trump’s belief that the FBI, CIA and other agencies are biased is hardly unjustified. At any rate, the result is likely to be extensive wrangling that pushes the classified documents trial into summer, fall or beyond. And, if Trump is elected, it will also be a dead letter. A Trump justice department will see zero point in going after the president for illegal possession of classified documents that he now controls in full.

Finally, there is Georgia. This is where Trump telephoned Brad Raffensperger, a Republican who is the state’s top election official, four days prior to the January 6 insurrection to plead with him to rustle up more votes, so he could say he carried the state after all.

“What I want to do is this,” Trump said. “I just want to find 11,780 votes, which is one more than we have, because we won the state.” Since he lost Georgia in fact by 11,799, that would have been just enough to put him over the edge. The election-tampering charge could not be stronger - except that it is now crumbling, because an elected Democratic prosecutor named Fani Willis turns out to have hired her boyfriend (a local attorney named Nathan Wade) to work on it. Willis paid Wade more than $650,000 in public money - which he then used to treat her to vacations in California wine country and the Caribbean.

It looks like a classic kickback. Since Willis is so far unable to come up with documentary evidence backing up her claims that she reimbursed Wade in full, it looks like the state will have no choice but to find a replacement - a process that could take years.3 The bottom line is that the Georgia trial will not happen any time soon.


So Trump will likely escape prosecution, as the Democratic offensive collapses across the board. Not only is the Democratic strategy proving ineffective, but it is actually backfiring by earning Trump sympathy points and making Dems look like liberal elitists out to short-circuit the election before Americans get a chance to vote.

“People are trumping up everything they can on him,” a Republican retiree in northern Illinois complained to The New York Times. “You can’t take away people’s choice,” another Trump supporter said. Even Democrats agree. “Voting is the way,” one told the Times in Illinois. “I think we should vote and vote him out. That’s the way to do it, not ban state by state.”4

They are correct. So what do ordinary Americans know that high-ranking Democratic strategists don’t? Everything the party does seems to strengthen Trump and bring him closer to his goal. If that is not the intention, it is certainly the result.

  1. www.nytimes.com/interactive/2024/03/03/us/elections/times-siena-poll-registered-voter-crosstabs.html.↩︎

  2. See ‘Attacks at every level’ Weekly Worker February 22: weeklyworker.co.uk/worker/1479/attacks-at-every-level.↩︎

  3. www.forbes.com/sites/alisondurkee/2024/02/16/will-fani-willis-be-disqualified-heres-what-would-happen-next-if-shes-removed.↩︎

  4. www.nytimes.com/2024/03/04/us/politics/trump-ballot-super-tuesday-election.html.↩︎