The guilty verdict reached by 12 New York City jurors on Thursday in the trial of Donald Trump may have taught a vital lesson: the criminal law remains a useful tool for correcting the worst abuses in American politics.
But that lesson will have a short life unless two old American institutions learn from it: the two-party political system, and the U.S. Supreme Court.
Maybe not since the rancorous campaign over ratification of the U.S. Constitution in 1787-88 have political factions been so deeply at war with each other, so profoundly polarized that, today, democracy itself is at risk in the presidential candidacy of Trump, now a convicted felon.
And perhaps not since the treason trial of Aaron Burr in 1807 (he was found not guilty) has the U.S. judicial system been as sorely tested as the Supreme Court is today. Another criminal case – the not-yet-decided case of Donald Trump v. United States — is at the heart of that.
This historic coincidence in timing, in political and judicial realms, has the nation assessing where its political future lies as it absorbs the shock of the conviction of Trump for 34 state crimes that the jury decided had been committed as he and his associates manipulated the 2016 presidential campaign in a way that probably helped put him in the White House in 2017.
The next date in the Trump legal saga comes on July 11, when he is scheduled to be sentenced for Thursday’s conviction. That will be just four days before the Republican Party gathers in Milwaukee to nominate its candidate for the presidency in the election next November 5. Will the delegates go ahead and choose Trump, who has won enough primary election victories to qualify? Will they put aside the reality of a criminal conviction and sentence that would have doomed any other candidate in history?
No one in America today can be sure how that question will be answered, but the Milwaukee convention will be entirely under the control of the leaders of the Republican Party, and that leadership is controlled by Trump, his family and his close associates. Besides, no alternative candidate is left standing after Trump swept the primaries.
It is possible, though, that what happens between now and then at the Supreme Court in Washington could have an impact, in both the political and legal realms. Before mid-July, the Justices are expected to decide the constitutional question of whether Trump can be put on trial for any charges he faces in three cases separate from the one just concluded in New York City.
The potential peril to Trump’s candidacy might increase, if he were to be convicted again, but the prospect that he will be put on trial again before the November election seems remote at this point, although not impossible.
For the past five weeks, the Justices in Washington have been working in private, crafting a decision on Trump’s immunity claim. If the Justices issue such a ruling soon, there might still be time enough before the election for him to be tried in Washington, D.C., on charges based on the violent attack on the U.S. Capitol on January 6, 2021, by a mob attempting to block Trump’s defeat in the 2020 election.
Supposedly, the immunity issue is being handled on an expedited schedule. It is possible, though no one can know for sure, that the Justices already know how they will decide but have been withholding any ruling to avoid any possible impact on the New York City trial. Now that that trial is over, then, a decision on immunity might be imminent. The next scheduled day for release of opinions by the Court is next Thursday.
At a hearing on April 25, a majority of the nine Justices seemed quite skeptical of granting absolute immunity to Trump, but some of them showed sympathy for some lesser form of legal protection because he engaged in the alleged crimes by using his official powers as President. That sympathy appeared to be based on a concern about setting a precedent that limited future presidents’ official authority.
However, if the Court orders some further exploration of the immunity question in lower courts, rather than deciding it itself in a final way, that almost certainly would guarantee that the Washington trial would not begin until after the Republican convention in Milwaukee and perhaps not even until after the election itself.
The immunity issue also could affect Trump’s exposure to federal crimes regarding his mishandling of highly secret national security documents at his Florida home, Mar-a-Lago. The judge handling that case has not yet ruled on a pending claim of immunity there. No date has been set for such a ruling, and there is as yet no date to start a trial in that case.
The other remaining prosecution of Trump, in Georgia state court on charges growing out of Trump’s attempt to overturn his defeat in that state in the 2020 election, has not yet gone to trial because of an appeal on a preliminary issue in state court. A state appeals court will not hold a hearing in that dispute until at least August.
The stress on the nation’s court system from the multiple prosecutions of Trump, with him continuously assaulting that system as “rigged” and “corrupt,” has been obvious for months. It has not helped that stress that the Supreme Court itself has been mired in ethical controversies involving Justice Samuel A. Alito and Justice Clarence Thomas, both of whom have refused to admit to ethical lapses. Moreover, neither of the two has agreed to take themselves out of participation in cases involving Donald Trump, despite repeated claims by Democratic congressional leaders that each is ethically obliged to do so because of family members’ political support for Trump.
The presence of Trump in the midst of another presidential election campaign also keeps a continuous spotlight on the deep chasm that exists between the two national political parties and their followers. The Republicans appear to be almost completely under Trump’s sway and shows no sign that it is ready to move beyond him in order to present a less tarnished candidate to the nation’s electorate.
History shows that the American governing experiment depends very much on a viable two-party system, with each party having its own approach to policy questions while each also has an underlying commitment to a healthy democracy. Policy questions, of course, still divide the two parties, but those are frequently pushed into the background by their mutual distrust and hostility.
It may be that the voters of America, exhausted by the nine years of political and legal strife surrounding Donald Trump, would welcome the development of new alternatives to political leadership. That, however, may not be possible until after this year’s election
Further, it may not be possible until after there is a significant change in the membership of the Supreme Court, with new Justices more sympathetic to voting rights than the current Court majority has been in recent years. The candidate elected President this November may well have a chance to choose new Justices should openings or retirements occur.
