Is this checkmate for Donald Trump?

He needs to convince jurors that he did not intend to disrupt the US constitutional system to keep his grip on power

Donald Trump speaks to supporters during a visit to the Iowa State Fair, on August 12, in Des Moines. AP Photo
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The fourth indictment of former US president Donald Trump may have given rise to the ridiculous phenomenon, or at least media conceit, of "indictment fatigue", but it adds invaluable new factors to the effort to hold him accountable for his failed effort to remain in power despite losing the 2020 election to Joe Biden.

The Fulton County district attorney, Fani Willis, has taken the opposite tack to that of federal prosecutor Jack Smith who indicted Mr Trump alone on four very limited charges, disconnected from the violence of the January 6 assault on Congress. Instead, Ms Willis has issued a sweeping, even sprawling, racketeering indictment – a total of 41 criminal counts in connection against 18 defendants, including Mr Trump – for a range of interconnected crimes designed to invalidate the election in Georgia, which was won by Mr Biden.

That means that Ms Willis's state-level case is bound to take much longer than Mr Smith's federal prosecution, and there is almost no chance her trial will begin before the 2024 election. But that's where things start to get really interesting. If Mr Trump is re-elected, he could try to pardon himself, or simply order the Justice Department to abandon the prosecution.

There could be complications with both approaches, but a sitting president can surely eventually quash a federal indictment against himself. The same is true if another Republican wins, and pardons Mr Trump or orders the prosecution abandoned.

That would be the end of Mr Smith's efforts to hold Mr Trump accountable. But Ms Willis would still be unencumbered in pursuing the same essential set of facts as applied to Georgia. Under the federal system, there is nothing Mr Trump or any other president can do to stop, or seriously interfere with, a state-level prosecution.

Moreover, no president can issue a pardon pursuant to state-level crimes, and even a Republican governor in Georgia would not be able to issue a pardon until five years after the sentence is served. The only real hope Mr Trump will have if Ms Willis is successful in the long run is for some extraordinary intervention to save him by the Supreme Court inventing novel constitutional claims, probably about federalism, or that a jury in Atlanta acquits him.

There is nothing to stop Mr Trump from running for and even winning the presidency despite these federal and state prosecutions, or from serving if he wins. So the US could be treated to the spectacle of a serving US president being criminally tried in a court in Georgia for seeking to stay in power despite the constitutional system he has twice vowed to "defend against all enemies, foreign and domestic".

Donald Trump slams 'ridiculous indictment' as an 'act of desperation'

Donald Trump slams 'ridiculous indictment' as an 'act of desperation'

Moreover, while the federal court system has a solid ban on televising trials, state-level proceedings are routinely televised, so that Ms Willis will be overseeing the next major public inteerrogation into and explication of the failed coup and attempted insurrection since the House select committee wrapped up its work before the 2022 mid-terms. The nation, and much of the world, will undoubtedly be riveted by the spectacle, particularly if Mr Trump is in the White House while on trial in Fulton County, Georgia.

The latest polls indicate that Mr Trump remains solidly the front runner in the Republican primaries, including in the first-in-the-nation voting in the Iowa caucuses, where he apparently holds a commanding lead. Yet his reputation with the general public, and especially the crucial swing voters in a few toss-up states that will decide the outcome of the 2024 election, continues to take a severe beating.

He is refusing to take part in the first Republican debate this week, and attempting to seize the limelight with simultaneous counter-programming through a taped interview with the ousted former Fox News anchor and white nationalist rabble-rouser Tucker Carlson. This risks allowing other candidates to potentially upstage him on that night, and possibly unsettling his position as front runner. More importantly, perhaps, it gives Mr Biden an obvious rationale to decline to debate Mr Trump should they end up in what looks like an extremely likely rematch.

Mr Trump seems to understand the danger that the two prosecutions over his failed coup attempt pose for him, even if the rest of the Republican field now looks pathetically weak.

Between Mr Smith and Ms Willis, he is squeezed between a pair of legal perils that complement and reinforce each other. If Mr Smith has been too narrow, Ms Willis has been expansive. If Ms Willis's case is too complex and lengthy, Mr Smith's may be quick and simple. If a Republican victory in 2024, even by someone other than him, can save him from Mr Smith, Ms Willis is still there with a parallel prosecution on the same essential facts to which that victory provides no answer.

Everywhere he looks, he appears checkmated – unless he can convince jurors that he did not do, or at least intend to do, what every known piece of evidence suggests he manifestly did intend to do, which is to effectively end the US constitutional system to maintain his own personal political power.

Intellectuals and jurists, including many highly respected conservatives, are buzzing about a bombshell legal paper that persuasively argues that because Mr Trump indisputably sought to destroy the US constitutional system, he is by definition ineligible for the presidency. The authors of the study, William Baude and Michael Stokes Paulson, argue powerfully that this prohibition requires no further judicial or political action because it is "self-enforcing".

Yet, actually enforcing such a prohibition would, in fact, require additional judicial and political action, even if the prohibition is theoretically self-enforcing. It would practically have to be enforced at least by the Supreme Court and, if Mr Trump were president and lost such a case, possibly by the armed forces – or at least part of them that sides with the law.

The bottom line is the grim reality that the only real way to defeat Mr Trump is at the ballot box. If his Republican opponents can't do it, it's going to be up to Mr Biden. He's demonstrated his ability to do so before, and there is every reason to think that he is going to be able to do it again. If not, the US may have to brace itself for the spectacle of not only a former president being repeatedly indicted, but a sitting president on trial in Fulton County, Georgia.

Published: August 22, 2023, 2:00 PM
Updated: September 04, 2023, 10:10 AM