The Fatal Flaw That Doomed the Trump Trials

Last week, Donald Trump’s lawyers asked Justice Juan Merchan to dismiss the New York hush money case against him because he is—by dint of securing the presidency—now too big to sentence. The Georgia, Florida, and New York criminal trials thus seem to have all gone the way of the Dodo bird. This week on Amicus Plus, Dahlia Lithwick was joined by investigative reporter Andrea Bernstein, host of the Slate Plus series “The Law According to Trump,” and Slate’s jurisprudence editor, Jeremy Stahl, who has been covering the Trump trials over the past few years. Together, they examine how the once and future president has managed to outrun and outmaneuver the law in every single case pending against him. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: The unknowable test that the Supreme Court handed down in the Trump immunity decision—with the inner and outer perimeters and the official and the unofficial acts—has become a “Where’s Waldo?” map of potential criminal liability that is now just Trump’s opening (and closing) legal argument. For all practical purposes that’s the argument for dismissing the New York sentencing: He has infinite executive power. Thanks, John Roberts. That kind of feels like heads, Trump wins, tails Trump wins, and nothing works.

Andrea Bernstein: The law, according to Trump, is to just delay, and to keep doing things that are outrageous until they become normal. People who have gone to regular law schools and grown up as traditional prosecutors have never confronted this before. He threw up a lot of defenses. He did a lot of things that nobody expected, and that certainly delayed things a lot.

I also think that the Jack Smith cases were caught up in this post-Biden 2020 election feeling—that a lot of people had, not just prosecutors—that the Trump era is over; let’s put that behind us and let’s move forward, let’s not have the country wrapped up in this forever. That’s not entirely crazy. To prosecute somebody like Donald Trump, you have to really, really want to, and I think that summoning the will to do that took a while. That is a not-insignificant part of the reason that we are where we are now.

Another thing to think about is how, in the first Jack Smith indictment, Trump was charged with essentially monkeying around with the Justice Department in unlawful ways. We now know that that behavior—which could maybe have been explained away as a kind of bug from the end of 2020 because Trump wanted to stay in office—that’s going to be a feature of the Trump Justice Department this time around. That’s a really disturbing and crushing view of this attempt to bring legal accountability—that it’s ending up as the opposite. Not only is the election interference from that first indictment not a crime, but Trump is pretty clearly telling us it’s how he plans to use the Department of Justice.

Jeremy Stahl: Donald Trump has said he wants to prosecute Jack Smith, right? It remains to be seen whether or not that actually happens, but just the thought that it might is horrific, chilling, and dangerous, and the immunity ruling specifically creates an opportunity to fulfill those kinds of really frightening pledges.

Lithwick: And Trump is filling Justice Department slots with the criminal defense lawyers who made these actual arguments for him in court. Again, thank you, John Roberts. We now see the president-elect rewarding the same people who made these expansive arguments about the president’s power over the Justice Department. We’re seeing those people running the Justice Department. It’s an entirely self-fulfilling prophecy.

Bernstein: Right. Todd Blanche is going to be the deputy attorney general. I’m still sort of processing that. He was the lead lawyer in The People of the State of New York v. Trump, the hush money case. Emil Bove, another one of Trump’s lawyers, has also been offered a senior position in the Justice Department.

John Sauer, who argued the immunity case at the Supreme Court, is going to be the solicitor general of the United States under Trump. Will Scharf, who was another counsel in that case, will be at the White House. So we’re not just talking about the people who argued in general for Trump; we’re talking about the people who argued for him in the courtroom now making decisions about whether prosecutions or investigations or other legal actions that the DOJ could be involved in will go forward.

Lithwick: And it’s the same people who were saying he can hire SEAL Team Six to assassinate rivals, who literally have now been told by the Supreme Court, Hey that’s fine—or at least, That’s ambiguous. But certainly he can do whatever the heck he wants with his attorney general—those are the people who will be running DOJ.

And I’m thinking about a recent op-ed in the New York Times which argued that the Trump trials were responsible for the election result. If, in fact, the takeaway is we should not have accountability because it makes the accused look sympathetic, that certainly explains all of Trump’s Cabinet picks right now. These are people who have experienced no accountability, but they apparently are sympathetic to massive numbers of people, and here we are literally faulting the legal system for trying to construct accountability.

Bernstein: I’ve heard the argument that these cases helped Trump—and of course on the day of his conviction, he raised more money than ever. But the alternative is much worse, and I still think it’s worth it, even given where we are now.

Stahl: SCOTUSBlog publisher Thomas Goldstein recently wrote a different Times op-ed, and one line stood out to me: “No man is above the law. But Mr. Trump isn’t an ordinary man.” It’s the antithesis of everything that the justice system is meant to be. This is how we got here, because of how Trump has been treated for decades. The fatal flaw is not rejecting that premise, but having accepted it for so damn long.

Lithwick: What you’ve just said, Jeremy, really distills what scares me. We went into 2016 hearing the sort of Nixonian valence, which was: “If the president does it, it isn’t illegal.” Now it’s turned into: “If Donald Trump does it, it isn’t illegal.” It doesn’t have to be an official act, it just has to be a thing that he says he can’t be held accountable for.

Stahl: And that notion, beyond just immunity, is now the entirety of his legal argument. The legal argument now is: Trump is too big to charge, to have been prosecuted, or even to now be considered a felon—which he legally is, and there’s no going back from that.

Lithwick: And it’s important to really underline the fact that the next four years can’t possibly be “more of the same,” because there are no rules anymore.

Bernstein: So, I taught a class at Bennington College this fall and we read Hannah Arendt’s “Truth and Politics,” and in this essay Arendt stubbornly refuses to let go of the value of the idea of factual truth. She is obviously clear-eyed in how tyrants try to undermine factual truth in very effective ways. But she ends the essay being somewhat optimistic. She says that there are three areas—the courts, journalism, and academia—where it is still possible to nurture the truth, even under extreme duress. And in the last line of that essay, this is what she says about truth: “It’s the ground on which we stand and the sky that stretches above us.” I’m going with that, because I think the alternative is to give up, and I’m not willing to give up on the idea of factual truth.

So even though we’re here and we keep talking about how truth has been eroded, along with the idea of the rule of law, these things have not been extinguished in human history.

Stahl: All I can say to that is “Co-sign.”

Lithwick: Co-sign a third time.