Deep Dive: The Election Will Decide President Trump’s Legal Fate

Authored by Mike Davis via Unfazed and Determined (emphasis ours),

For years, the Biden-Harris Justice Department, partisan Democrat state and local prosecutors, and private citizens—often funded by wealthy anti-Trump donors—have waged an unprecedented lawfare campaign against President Trump. We set out to provide a detailed update on the mind-boggling number of cases. We focus on the four absurd criminal indictments because, of course, they could mean a lifetime of imprisonment for President Trump. We also detail important civil litigation Trump faces.

Indictment No. 1: New York Nonsense

In April 2023, Democrat Manhattan District Attorney Alvin Bragg, who campaigned on getting Trump, obtained an indictment against Trump on 34 felony counts related to supposed business records violations. In late 2022, Bragg plucked Matthew Colangelo—the acting No. 3 political appointee in the Biden-Harris Justice Department—to become a key lieutenant in Manhattan to get Trump. Colangelo, in other words, left one of the most prestigious legal jobs in the country to become a local prosecutor. In the indictment, Bragg claimed that, just before the 2016 election, Trump—through attorney Michael Cohen—had agreed to pay a common nuisance complaint to two litigants, a common business practice. Then, Bragg claimed, Trump had falsified his personal business records to conceal the payments. Business records violations of this type are normally misdemeanors in New York for which the statute of limitations is only two years, but Bragg alleged that Trump had violated federal campaign finance laws. According to Bragg, Trump had been required to disclose these payments. His falsifying business records in furtherance of campaign finance violations was thus a felony—or, in Bragg’s absurd view, 34 felonies—because business records falsified to further a felony themselves constitute felony violations.

Bragg’s case makes no sense. The payment occurred in late October 2016. Trump would not have had to disclose it to the Federal Election Commission (FEC)—assuming, of course, that he even would have had to disclose it at all—until weeks after the election. In other words, the failure to disclose it could not have impacted the election. As former FEC Commissioner Brad Smith (more on him in a bit) has articulated, payments like this—so-called hush-money or nondisclosure payments—are personal and not campaign expenses. The Justice Department indicted former North Carolina Senator John Edwards on the same theory, and the jury deadlocked. The Justice Department could not make the case that Edwards’ payment to his former lover, made while he was running in the 2008 presidential election, was a campaign matter rather than a personal one.

Acting Manhattan Supreme Court (New York’s lowest state court) Justice Juan Merchan presided over Trump’s trial in April and May 2024. The judge had no business on the case. First off, he had donated in 2020 to President Biden—Trump’s 2020 and, at the time, 2024 opponent—in violation of New York’s judicial ethics guidelines. More importantly, Judge Merchan should have recused because of his daughter, Loren Merchan. Ms. Merchan is the president of Authentic Campaigns Inc. (Authentic), a Chicago-based firm that does digital consulting and marketing for Democrat candidates. One of Authentic’s clients during the 2024 cycle was Adam Schiff, the deranged anti-Trump U.S. House representative who is running for a vacant U.S. Senate seat from California. When Bragg announced his indictment of Trump, Schiff—while working with Authentic—sent out a fundraising email touting the indictment. The Senate Majority PAC, another Authentic client that works to elect Democrats to the Senate, sent out a similar fundraising email based on the indictment. Schiff and the Senate Majority PAC combined have raised well over $100 million since the emails. It is impossible to say how much the emails themselves generated, but the point is that Judge Merchan’s daughter Loren’s clients have used the case to fundraise. The more donations come in, the more chance there is for Authentic to profit.

Judge Merchan should have dismissed the case; instead, he let it go to trial. He refused to allow Brad Smith, the former FEC commissioner, to testify about the intricacies of campaign finance laws. Smith would have explained why the campaign finance claim makes no sense. Judge Merchan did, however, allow the testimony of two of President Trump’s former White House aides—Hope Hicks and Madeleine Westerhout—regarding communications with Trump while he was President over the payments. The prosecution referred to this testimony as “devastating” in its closing argument because, the prosecutor claimed, it corroborated Cohen’s testimony that Trump had ordered the payments. The jury found Trump guilty on the 34 counts; Bragg had charged each entry as a separate felony. Trump faces up to 136 years in prison. Judge Merchan scheduled sentencing for July 11, 2024, but a dramatic development changed the game.

On July 1, 2024, the United States Supreme Court ruled that presidents are absolutely immune from criminal prosecution for core official acts and at least presumptively immune for other official acts. This ruling stemmed from Trump’s indictment in the District of Columbia (more details on that later). While the alleged payments in Bragg’s case may not be official acts, the Supreme Court crucially held that a president’s internal deliberations with aides—even about unofficial acts—are inadmissible in a criminal case concerning those unofficial acts. As such, the testimony of Hicks and Westerhout—the “devastating” testimony, according to the prosecution—never should have happened.

Trump’s team immediately moved for a mistrial. Judge Merchan stated that he would rule by September 6 on the motion and go ahead with the sentencing, if necessary, on September 18. On September 6, however, Judge Merchan postponed a ruling on the mistrial motion until November 12 and the sentencing, if necessary, until November 26. Under this schedule, both will occur after the November 5 election. Based on old and new evidence, however, Judge Merchan should not rule on the case. On August 20, 2024, Vice President Kamala Harris filed her first FEC report as the presumptive Democrat candidate for the presidency. On Form 3P, line 23, a little-noticed but explosive disbursement appears: a $468 payment to Authentic for website hosting services. The Biden campaign had used Amazon to host its website prior to his leaving the race on July 21. Within days, the Harris campaign hired Authentic; the disbursement date is July 30. This means that Judge Merchan’s daughter, Authentic’s president, has a direct business relationship with Trump’s main opponent for the presidency while Judge Merchan is making rulings that could profoundly impact the election.

Indictment No. 2: Madness at Mar-a-Lago

When he was about to leave office, President Trump declassified many records and kept personal copies. This is similar to what former President Bill Clinton did when he retained copies of audiotapes of material, including classified information, related to the presidency. When a group sought these tapes as presidential records, U.S. District Judge Amy Berman Jackson of the District of Columbia held that President Clinton had exercised his discretion to retain the records as personal records. This suit arose from the Presidential Records Act of 1978 (PRA). Under the PRA, presidents must turn over presidential records to the National Archives. The Archives usually returns many of these records for use in presidential libraries. Presidents also have the inherent power to declassify anything they wish in any manner they wish. While the government owns presidential records, the PRA gives a former President access to his presidential records anytime he wants.

Trump and the National Archives battled for months over the custody of certain presidential records. During this time, the presidential records were at Trump’s Office of the Former President in Mar-a-Lago and under Secret Service protection. Trump, as a former president, is entitled to this protection for life. The DOJ intervened in the dispute and subpoenaed the records. In August 2022, FBI agents raided Mar-a-Lago in an early morning operation. The agents, heavily armed, seized truckloads of boxes of documents. Attorney General Merrick Garland signed off on the raid, as did U.S. Magistrate Judge Bruce Reinhart. Six weeks prior,  Judge Reinhart had recused himself from a lawsuit involving Trump and Hillary Clinton. The reason was obvious. In 2017, while a private lawyer, Reinhart had disparaged Trump in a Facebook post; in other words, Judge Reinhart had expressed animus against one of the parties in a case over which he was presiding. Yet, he signed the Mar-a-Lago raid warrant.

Fast forward to November 18, 2022, when Garland plucked Jack Smith from The Hague to serve as Special Counsel in Trump’s federal cases. Smith had served as the head of DOJ’s Public Integrity Section and had secured a conviction against former Virginia Governor Bob McDonnell, a likely 2016 Republican candidate for the presidency or vice presidency. The 2014 conviction was based on the theory that, while in office, McDonnell had obtained gifts in exchange for holding meetings with people. DOJ never claimed that McDonnell had, say, signed a law in exchange for gifts. In 2016, the Supreme Court unanimously rejected this laughable theory. What McDonnell had done may have been tawdry, but it was not a crime. The damage had been done, however, as McDonnell was out of commission as a political force.

The Senate never confirmed Smith; Garland simply picked him, claiming that Smith would serve independently since Trump had announced his candidacy for the presidency earlier that month. In June 2023, Smith secured an indictment against Trump and two others on charges of willfully retaining and mishandling classified information, as well as obstruction of justice. Smith claimed that Trump and his aides had tried to hide documents after the subpoena. Judge Aileen Cannon of the Southern District of Florida received the random case assignment immediately after the indictment. Smith never sought her recusal during her 13 months on the case.

One of these motions concerned the constitutionality of Smith’s appointment. Smith, Trump argued, had power equivalent to a U.S. Attorney. These officials require Senate confirmation, which Smith never obtained. Judge Cannon agreed, holding that Smith’s appointment violated the Appointments and Appropriations Clauses of the Constitution. She cited a concurrence by Justice Clarence Thomas in the presidential immunity decision. The Supreme Court has never determined whether a special counsel like Smith is constitutional. In 1974, Leon Jaworski served as the special prosecutor in the investigation of President Richard Nixon. While that case wound up at the Supreme Court, neither party briefed nor argued the constitutionality of Jaworski’s appointment.

Smith has appealed Judge Cannon’s decision to the Eleventh Circuit. Briefing should be finished by mid-October, and oral argument likely will occur after the election. Smith has not sought Judge Cannon’s recusal; however, a Soros-funded leftist group called Citizens for Responsibility and Ethics in Washington (CREW) has. In its friend-of-the-court brief, CREW—a nonparty who has no standing to seek recusal—claimed that Judge Cannon has been biased in favor of Trump. CREW never filed such a brief with respect to Judge Reinhart. CREW whined about the “sluggish” pretrial pace, but CREW does not have the right to a speedy trial. That right belongs exclusively to the defendant under the Sixth Amendment. It is unclear if the court will accept CREW’s brief, and we have urged the three-judge panel to decline to do so.

CREW’s brief was the culmination of a pattern of absurd attacks against Judge Cannon. Leftist legal pundits are angry that she has not jumped whenever Smith has barked. In a New York Times story, for instance, anonymous sources claimed that Chief Judge Cecilia Altonaga had suggested that Judge Cannon step aside so that the case could be moved to Miami where there was a secure facility to view classified documents. One since has been built at the courthouse where Judge Cannon sits in Fort Pierce. Another judge supposedly made the absurd suggestion that Judge Cannon should let a more experienced judge handle the case. There is no experience requirement for a judge to preside over a case, and were Judge Cannon to step aside and be replaced by, say, a less experienced Biden appointee, the experience complaints would evaporate in no time.

The most egregious campaign against Judge Cannon came from Glenn Kirschner, a former federal prosecutor and terminal sufferer of Trump Derangement Syndrome. Kirschner posted on his YouTube channel a guide for his followers to file ethics complaints against Judge Cannon with the Eleventh Circuit. Over a thousand of these pests deluged the court, and it got so bad that Chief Judge William Pryor directed the court clerk to stop accepting these complaints because the limited court staff were overwhelmed. This unprecedented campaign against Judge Cannon, based on absurd arguments, is a grave threat to judicial independence that so far has failed and must never succeed.

Indictment No. 3: D.C. Derangement

Smith, who has no business serving because his appointment was unconstitutional, was not remotely finished with Trump after the Florida indictment. In August 2023, he obtained an unprecedented separate indictment against Trump in the District of Columbia over the events surrounding the January 6, 2021 Capitol riot. Notably, even rabid partisan Smith did not charge Trump with having incited an insurrection, the absurd claim used to attempt to disqualify Trump from the ballot, as detailed later. Instead, Smith charged Trump with conspiracy to violate the rights of voters by depriving them of their lawfully cast votes. Smith also claimed that Trump had defrauded the United States because, Smith alleged, Trump knew he had lost the election but spread the lie that he had won in order to stay in power. Smith also charged Trump with obstruction of an official proceeding, the counting of the electoral votes in Congress. Smith intruded upon internal DOJ deliberations, inserting their contents into the indictment. Trump had asked the DOJ to investigate election fraud, and Assistant Attorney General Jeffrey Clark had suggested sending an advisory to state legislatures–a draft never sent–that they should conduct their own investigations and, if appropriate, appoint alternate electors. Pundits have called these “fake electors,” but they in reality were alternatives who could have voted for Trump were the Biden electors rejected if fraud had emerged.

D.C. U.S. District Judge Tanya Chutkan, an Obama appointee, received the case assignment in August 2023 and set a March 4, 2024, trial date. This scheduling was absurd. There were millions of pages of discovery and thousands of hours of video to pour over. The goal was obvious: get Trump before a virulently anti-Trump D.C. jury and secure a quick conviction before the election. At prior sentencings, Judge Chutkan had made critical comments regarding Trump, though she referred to him as one person who had not been charged; she did not utter his name. Smith had proposed an even more ridiculous trial date: January 2, 2024. Judge Chutkan ruled against Trump in pretrial motion after pretrial motion, culminating in her December denial of his motion to dismiss the case on the basis of presidential immunity. Trump claimed that he had taken official acts that constituted the basis of Smith’s indictment. Those acts were immune from prosecution, and the indictment must fail. Judge Chutkan categorically rejected this claim, holding that presidents are not entitled to immunity for official acts.

At this point, Trump appealed to the D.C. Circuit, and Smith’s train began to derail. Since the issue involved immunity, Trump’s appeal halted all pretrial proceedings before Judge Chutkan. Smith, desperate to obtain his conviction before the election, sought review by the Supreme Court even before the D.C. Circuit had ruled. His justification was insulting. He claimed that the nation had a compelling interest in resolving this issue. The nation is not entitled to a speedy trial; the defendant is. It would make no difference legally whether the issue of immunity was resolved in 2024 or 2025. The justices rejected Smith’s pathetic political ploy and allowed the appeal to proceed as it otherwise would have.

Without justification, the D.C. Circuit expedited briefing and oral argument on Trump’s appeal. In February 2024, a three-judge panel rejected Trump’s immunity claim, holding that, while presidents might have immunity for some acts, Trump did not for his. The judges, in other words, created a Trump-only immunity rule. The panel also rejected concerns that prosecutors would abuse power to indict a former president, reasoning that Trump’s being prosecuted in the normal course of the criminal justice system showed that the prosecution was proper. This reasoning makes no sense, as Chief Justice John Roberts later pointed out at oral argument. After the D.C. Circuit’s ruling, Trump sought Supreme Court review, which the justices granted in March. Oral arguments occurred on April 25, and the Court ruled on July 1.

This timeline infuriated leftist pundits, who whined that the Court was not moving fast enough. To put this in perspective, Trump was indicted in August 2023, and a pretrial appeal wound its way through the federal system and was resolved in 11 months. That timing is extraordinarily fast. For example, Joseph Fischer, a former police officer, was indicted on November 10, 2021, for, among other things, obstruction of an official proceeding concerning the Capitol riot. Judge Carl Nichols dismissed that count, the DOJ appealed and won at the D.C. Circuit, and the Supreme Court granted Fischer’s petition for review. In June 2024, the justices ruled in Fischer’s favor, holding that the obstruction statute did not apply. More than two and a half years had elapsed between the time of Fischer’s indictment until the Supreme Court’s decision, more than double the time it took to resolve Trump’s pretrial appeal. The only reason for complaints about timing was an improper one: the election. Like Smith, leftist pundits wanted Trump convicted and locked away in a cage during the campaign.

The Supreme Court gave Trump (and the presidency) a significant victory in the immunity decision. Core official acts like pardons or bill vetoes are, the justices held, absolutely immune. Other official acts are at least presumptively immune. For instance, the Court cited Trump’s conversations with Vice President Mike Pence concerning the certification of electors. As President of the Senate, Pence presided over the certification, and President Trump wanted him to reject several slates of electors. Pence refused, and Congress certified the election results. The justices also struck portions of Smith’s indictment concerning Trump’s communications with the DOJ, holding that those deliberations between the president and DOJ constituted core presidential acts. The Court also ruled that a president’s motives cannot be considered in determining whether acts are entitled to immunity. Presidents also have broad leeway in communicating with the American people. As such, many public statements of a president constitute official acts. In the indictment, Smith cited many of Trump’s social media posts concerning the election as evidence of criminality.

The Court remanded the case to Judge Chutkan to apply its immunity test. Judge Chutkan had made no findings of fact; rather, she had rejected Trump’s immunity claim on its face. Even though Fischer’s case, which we referenced earlier, did not directly involve Trump, the Court’s ruling well could. The obstruction statute on which Trump and Fischer were indicted was a post-Enron law dealing with the destruction of evidence in cases. Its 20-year maximum sentence has been a powerful weapon for the DOJ to induce January 6 defendants to plead guilty to lesser charges. All but one district judge in D.C., Judge Carl Nichols, allowed the DOJ to get away with this statutory abuse and political persecution. In light of the Supreme Court’s decision, however, many defendants will need to be resentenced without the obstruction charge. Judge Chutkan will also need to decide if those two counts must be dismissed as to Trump–two of four of Jack Smith’s bogus charges.

On September 5, 2024, Judge Chutkan held the first status hearing on Trump’s case since the pause in proceedings last December. Smith made an extraordinary proposal. He wanted to file an opening brief on the issue of immunity, after which the defense could respond and Smith could reply. Even more astoundingly, Judge Chutkan agreed to this. Instead of permitting the defense to file a motion to dismiss the superseding indictment that Smith had obtained last month, the normal procedure in such a case, Judge Chutkan permitted prosecutors to have the first and last word on the immunity dismissal issue. All briefing should be complete by October 29, a week before the election. Smith has indicated that he will submit evidence that has not yet become public. This submission will occur while voters are casting ballots in mail and early voting. It is a blatant effort to influence the election.

Judge Chutkan has stated that she will not take the election into account in her scheduling decisions. Her rulings themselves cast doubt on that assertion, however. She rushed to schedule a trial and made no findings of fact concerning immunity. This lack of fact finding elicited justified criticism from the Supreme Court. She then, in what is essentially a motion to dismiss an indictment, allowed the prosecution to fire the first shot. It is plain that she is solidly against Trump.

Because it is impossible for the D.C. case to go to trial before the election, Smith has tried to dent Trump through the filing of evidence presented to the grand jury in obtaining the superseding indictment. Judge Chutkan, who has discretion in managing a pretrial schedule, decided to allow this. The result was a bizarre 180-page long brief that was filed before the Trump team even had the chance to file a motion to dismiss. This is totally bizarre – and if the goal were to ultimately convict Trump at trial, Smith would never put all this information on the public record right now, due to the risks of tainting the jury pool. But it seems clear that Smith has decided that his prosecution is doomed, and so he will use this prosecution to provide fodder for hit pieces against President Trump in the run-up to the election. This is a totally improper use of the judicial system, but Judge Chutkan was happy to allow it.

Smith has indicated that, even if Trump wins, he will continue to pursue the case. Trump’s acting attorney general must fire Jack Smith immediately, shutdown his office, and dismiss with prejudice all these bogus federal indictments against Trump. It is crucial to remember that these cases should not be proceeding and never should have begun. They are not the result of earnest prosecutors who desire to uphold the law regardless of politics; rather, they are the product of politically motivated lawfare designed to take out an opposing party’s presidential candidate.

Indictment No. 4: The Fulton Fani Fiasco

In August 2023, Fulton County, Georgia District Attorney Fani Willis obtained an indictment against Trump similar to Smith’s D.C. indictment–but even more bizarre. Willis alleged that Trump had violated Georgia’s racketeer influenced and corrupt organizations (RICO) statute. According to Willis, Trump had sought to overturn a valid election in Georgia through illegal means. She cited a recorded call on which Trump had told Georgia Secretary of State Brad Raffensperger to find 11,000 votes, the approximate margin of Trump’s deficit at the time. According to Willis, Trump wanted votes fabricated. Willis also charged that Trump had engaged in a fake electors scheme to replace Biden’s slate of Georgia electors with an alternate Trump slate.

Willis did not just indict Trump. She indicted 18 defendants, including Trump attorneys John Eastman, Jenna Ellis, Sidney Powell and former New York City Mayor Rudy Giuliani. These lawyers, Willis claimed, had submitted fraudulent court filings in furtherance of the RICO conspiracy. Willis did not stop there, however, indicting David Shafer, chairman of the Georgia Republican Party. She even went so far as to indict Jeffrey Clark, the former U.S. Assistant Attorney General, and former White House Chief of Staff Mark Meadows.

Willis’s case seemed to be humming along nicely until January 2024. At that point, one of Trump’s codefendants filed a motion seeking the recusals of Willis and Nathan Wade, her top special prosecutor. Willis paid Wade nearly $700,000 for his services on Trump’s case. The motion alleged that the two had been having a secret affair while the case was pending and while Wade was married. Superior Court Judge Scott McAfee held a lengthy evidentiary hearing on the motion, over the vehement protests of Willis’s underlings, who demanded that the lawyer who had filed the motion be sanctioned.

Instead of a garden-variety evidentiary hearing, what occurred was the courtroom version of Jerry Springer. In a nationally broadcast proceeding, Wade and Willis testified and admitted to the affair. While Wade was relatively calm, Willis melted down. She was so out of control that Judge McAfee admonished her to stop her antics. Willis and Wade admitted that Wade had paid for lavish vacations, including a Caribbean excursion. They also claimed that Willis had reimbursed Wade, but they provided no documents to support this assertion. Instead, they told the judge, Willis had given Wade cash. Willis claimed that she keeps massive piles of cash at her house, including leftover campaign contributions, that she uses to pay expenses. It is unclear why Willis did not just use the cash to pay for the trips themselves.

Judge McAfee split the baby. He ruled that Willis could remain on the case, but only if Wade resigned. Wade resigned the afternoon of the ruling. The judge criticized Willis for her conduct, highlighting her speech at a predominantly African American church in which she had claimed that the charges against her were racially motivated. Judge McAfee characterized Willis’s and Wade’s testimony as having “the odor of mendacity.” Trump and many of his codefendants immediately appealed to the Georgia Court of Appeals, which will hear oral arguments in December. The court must rule by next March, but the losing side can appeal to the Georgia Supreme Court. That court has discretion to hear the appeal. If it chooses to hear the case, a decision may not occur until 2026. If Willis and her office are disqualified, a committee will assign the case to another district attorney in a different county, who might elect to drop it.

Even if Willis is not ultimately disqualified, the case is a long way from trial. The reason concerns presidential immunity. Like he did with respect to the D.C. indictment, President Trump has moved to dismiss the Georgia case on the theory that the indicted acts are immune from criminal prosecution. Judge McAfee has not touched that issue. The immunity ruling came in July; by that time, proceedings before Judge McAfee were on hold because of the Willis disqualification appeal. When and if Judge McAfee rules, that decision can be appealed through the Georgia courts and ultimately up to the United States Supreme Court. Also, if Trump wins the presidency, the case surely will be paused while he serves his term. Meadows also has sought to remove his case to federal court, claiming that his acts were official and thus subject to the removal statute. The district judge and Eleventh Circuit ruled against him, and he has sought Supreme Court review. The issue would become moot if Willis is disqualified and a new prosecutor drops the case.

The case should be dropped, but the case never should have begun. Willis and Wade used it as a trough to finance their luxurious lifestyle, costing the taxpayers of Fulton County nearly $700,000 in the process. Wade’s billing for his services was outrageous. On one day, he billed 24 hours at $250 an hour. If true, Wade did not stop to eat. Take a shower. Go for a walk for a few minutes to stretch his legs after sitting at a desk and working his fingers to the bone. Catch some sleep. He just worked nonstop, he claimed. This assertion is insulting to the intelligence of any reasonable person. Wade also billed Fulton County taxpayers $4,000 for two meetings with Biden-Harris White House officials before bringing the unprecedented indictment against Trump, their political opponent. The first occurred in Athens, Georgia, with the White House Counsel. The second occurred in Washington, where Wade apparently went to the White House. We have no idea what discussions occurred between Wade and White House officials, but it is plain that there was coordination between the Biden-Harris White House and state prosecutors. Since Wade billed Fulton County, whatever he was doing pertained to Trump’s case. Wade also never should have been hired to prosecute a RICO conspiracy, one of the most complicated indictments a prosecutor can pursue. Willis cited Wade’s service as a municipal court judge, but that in no way qualified him to prosecute a case of this complexity or magnitude. He had never even tried a felony case. Wade also laughably claimed that, even if Trump is President, he can be tried criminally in Georgia during his term. This assertion alone illustrates just how unqualified Wade was to serve on the case. Thanks to their astonishing foolishness and arrogance, Wade and Willis might well find themselves as criminal defendants either in Georgia or a federal court in some other venue while Trump goes free and serves four more years in the White House.

* * *

The criminal lawfare that President Trump has had to face is, by itself, shocking, but it does not come close to capturing the magnitude of the lawfare campaign. Civil actions have sought to bankrupt Trump, prevent him from doing business, and even remove him from the presidential ballot. The last effort not only was an attack on Trump; it amounted to an attempt to disenfranchise the tens of millions of Americans who wish to vote for him. Below is a history and update on several of these civil actions.

Lawsuit No. 1: The Insurrection Rejection

The National Park Service approved a permit for the so-called “Stop the Steal” rally on January 6, 2021. The purpose of this event was to protest the electoral certification of Biden’s victory that day in Congress, and President Trump spoke at the rally. In his speech, President Trump urged his supporters to “peacefully and patriotically” march to the Capitol.

What happened at the Capitol that day was a riot. As Justice Alito pointed out at oral argument in Fischer v. United States, the case that stopped the Biden-Harris Justice Department from using the obstruction statute against January 6 defendants, “January 6 was very serious.” Police officers were assaulted, and the Capitol sustained damage. Some rioters even stole government property like computers from the offices of members of Congress. An officer died from natural causes; Trump was not, contrary to some delusional leftist claims, responsible for his death.

January 6 was not, however, an insurrection. Shortly after the riot had subsided, leftists began plotting to end Trump’s potential 2024 presidential campaign early. Voters would not decide if he should resume the presidency; judges would. This plan centered around Section 3 of the Fourteenth Amendment, the Insurrection Clause. This provision holds that those who have previously taken an oath to support the Constitution of the United States and then engage in rebellion or insurrection against it shall be disqualified from holding further office, unless Congress removes the disability by a two-thirds vote. The Insurrection Clause was designed to keep former confederates from assuming office, such as being elected to the House of Representatives.

Leftists claimed that Trump’s January 6 speech, which called for a peaceful march to the Capitol, constituted an insurrection. These authoritarians claimed that Trump had used violence to prevent the peaceful transfer of power. Were this view accepted, it would gut the First Amendment’s guarantee of freedom of speech. Phrases such as “fight like hell” would transform someone into an insurrectionist. When Trump announced his candidacy, leftists began filing lawsuits to strike him from ballots. Most failed, but Denver, Colorado District Judge Sarah Wallace decided to hold a trial on the issue. The judge then ruled that Trump had engaged in an insurrection but that he was not an officer of the United States and that the oath he had taken was not the same as the one articulated in the Insurrection Clause.

On appeal, the Colorado Supreme Court agreed that Trump had engaged in an insurrection but reversed the trial court’s rulings with respect to the oath and Trump’s being an officer of the United States. The 4-3 majority on the all-Democrat-appointed court, including now-Chief Justice Monica Márquez, ordered Trump removed from the presidential primary ballot. This ruling, issued just before Christmas, sent shockwaves through the nation. Within a short time, Maine Secretary of State Shenna Bellows, a radical Democrat who had not even been elected, decreed that Trump was an insurrectionist and removed him from the ballot. Soon after, Cook County Circuit Judge Tracie Porter in Chicago followed suit based on the ruling of the Colorado Supreme Court. The leftist lawfare was working to perfection. Trump was almost gone; there was just one more hurdle to overcome.

Trump appealed the Colorado decision to the Supreme Court of the United States. On March 4, 2024, the day before Super Tuesday—the day on which many states have primaries and caucuses—the justices issued their decision. The Court unanimously–9-to-0–held that states have no authority to bar federal candidates from running for office based on the Insurrection Clause. A majority of the justices also held, as Chief Justice Salmon Chase had in Griffin’s Case (1869), that Congress must pass a statute for the Insurrection Clause to be enforceable; in other words, the Insurrection Clause is not self-executing. House Democrats have proposed such a law, but there is no chance that it will pass the Republican-controlled House. If Trump wins and Democrats take control of the House and Senate, however, such a law could pass next January before Trump’s inauguration. Otherwise, if Trump prevails, leftists cannot thwart his assuming the presidency by branding him as an insurrectionist.

The events of the insurrection saga were unfathomable. Trump has never been convicted of insurrection. He has never even been charged with that offense. Jack Smith, as aggressive a prosecutor as there is and a rabid partisan to boot, has not even gone down that road, and Smith has indicted Trump for seemingly everything under the sun. Yet, a group of leftist lawyers and so-called scholars led by J. Michael Luttig, a retired judge appointed by President George H.W. Bush, who was passed over by President George W. Bush for elevation to the Supreme Court, cooked up a scheme based on a constitutional provision designed to guard against a return to power by members of the Confederacy. With the vigorous support of leftist groups like CREW, this cabal convinced a trial judge and a state supreme court to throw a major party’s candidate off the ballot. An unelected secretary of state snapped her fingers and declared this candidate an insurrectionist. It is highly likely that some leftist lower court federal judges would have gone along with this plan. While they have failed in many areas, President Biden and Vice President Harris have excelled at stocking several appellate courts with hardcore leftists. Only the Supreme Court of the United States saved democracy by stopping the audacious effort to disenfranchise tens of millions of voters. This shameful episode illustrates in the most stark way how the Supreme Court is the last safeguard against the unspeakable lawfare that President Trump has had to endure.

Lawsuit No. 2: New York Nonsense, Big-Tish Style

Alvin Bragg is not the only leftist New York prosecutor who has it out for Trump. Professor Alan Dershowitz of Harvard Law School wrote a book, Get Trump, in which he detailed the extraordinary efforts of the anti-Trump lawfare. The title was easy. Dershowitz did not make it up; it came from New York Attorney General Leticia James, a partisan Democrat who vowed to do just that in her campaign. She followed through, suing Trump for hundreds of millions of dollars. James claimed that Trump had defrauded many banks. James’s theory was that Trump had inflated the value of his assets to procure bank loans. A clause in the lending agreement instructed banks to do their own due diligence. These banks were some of the largest in the world, the most sophisticated of actors. One executive testified that Trump was “a whale,” meaning someone with whom banks wanted to deal because of his enormous brand. The banks reasoned that Trump was good for the money, and the banks received payment for the loans on schedule, in-full, on-time, and with interest. In other words, there was no victim of this supposed fraud.

There was a trial in this case, but much of the deciding had already occurred. Democrat Manhattan Judge Arthur Engoron ruled, based on briefing, that Trump had somehow committed fraud. The statute in question, which deprives defendants of a jury trial, never had been used like this in its history. The trial was for the sole purpose of determining damages. In the end, Judge Engoron imposed approximately $455 million, including interest. He ordered Trump to pay the entire amount as a bond prior to appealing; otherwise, James could begin seizing his assets. The order also banned Trump and his sons from serving as officers of a New York corporation for several years. Trump appealed, and the New York Appellate Division lowered the bond to $175 million, still a gargantuan amount.

Throughout the trial, Judge Engoron made it plain that he detested Trump, referring to him as “a bad guy” and repeatedly smirking during the proceedings. He imposed an unconstitutional gag order to prevent Trump from criticizing him. Judge Merchan imposed a similarly illegal order in the criminal trial that precludes Trump from mentioning the ties that Loren Merchan has to Biden, Harris and other Democrats. Judge Engoron’s clerk also made political donations in violation of New York judicial ethics guidelines, just like Judge Merchan. The case is currently awaiting a ruling by the Appellate Division, after which the losing side will surely seek review by the New York Court of Appeals. The oral argument strongly indicates the appellate judges see this case as legal lunacy.

As prominent investor and Shark Tank host Kevin O’Leary pointed out, what Trump did was no different than what businesspeople do every day. No other businessperson has faced legal repercussions for such conduct. Recognizing that the decision against Trump may have inspired fear among other members of the business community that could cause a massive exodus from New York, Democrat New York Governor Kathy Hochul sought to quell fears by claiming that they did not need to worry; this was only about Trump. This assertion proves Trump’s point; he has been a target of lawfare. Members of the business community do indeed need to worry, however, for if New York can do this to Trump because of James’s vendetta, New York can do the same to any of them.

Lawsuit No. 3: More January 6

In June 2021, two officers with the Capitol Police—James Blassingame and Sidney Hemby—sued Trump for damages based on physical and emotional suffering as a result of the Capitol riot. The officers claimed that Trump’s words, including his plea to take back the country with strength and to “fight like hell” had incited the riot, even though he had urged supporters to march “peacefully” to the Capitol. Trump moved to dismiss the suit on the grounds that the actions alleged were official. Blassingame and Hemby claimed that the actions were not those of a president but rather those of a candidate seeking to advance his personal interests, mainly the goal of remaining in power. In February 2022, D.C. U.S. District Judge Amit Mehta, an Obama appointee, denied the motion. Trump appealed, and the D.C. Circuit issued its ruling in December 2023. There was neither expedited briefing nor oral argument.  Unlike the D.C. criminal case, the civil matter proceeded in the normal course. The appeals court held that there should be a discovery phase after which the district court should determine which of Trump’s acts were official and thus entitled to immunity versus which acts were personal and thus not so entitled.

The concept of civil presidential immunity from private suits goes back to Nixon v. Fitzgerald (1982). There, the Supreme Court held that presidents are absolutely immune for civil actions based upon acts that concern even the outer perimeter of presidential duties. At oral argument in Trump’s D.C. criminal case, Justice Gorsuch spoke favorably of remanding for a test like that adopted by the D.C. Circuit in the suit by the Capitol officers. Trump’s counsel, D. John Sauer, agreed that such a remand would be proper. Judge Mehta has been undertaking that analysis since the D.C. Circuit’s remand, and the case will not go to trial before the election. Judge Mehta also denied a motion to dismiss the case on free speech grounds. If it goes to trial, Trump likely will lose in front of a D.C. jury. His only hope for salvation will come from appellate review. The D.C. Circuit did not review Judge Mehta’s First Amendment ruling.  Those kinds of decisions receive review after the conclusion of a trial. Immunity is different because, if a defendant is immune from civil or criminal liability, the defendant should not even face trial. As such, immunity decisions are immediately appealable. We should expect a massive judgment similar to or even greater than the $148 million that a rabid D.C. jury levied against Giuliani in a defamation suit brought over his claims of election fraud.

When and if the case reaches the appellate phase, either the D.C. Circuit or, more likely, the Supreme Court should throw it out on First Amendment grounds. If Trump’s speech, where he never asked the crowd to be violent but rather urged a “peaceful” march to the Capitol, can constitute the basis for civil liability, the First Amendment would be a nullity. Tens of thousands of people attended the rally, heard the speech, and either went home or followed Trump’s request to march “peacefully” to the Capitol. In the insurrection case, the Supreme Court did not reach the First Amendment issue, but that ground alone should have ended the case. Just as one should not be branded an insurrectionist and disqualified from office based on a speech that never urged violence, one also should not incur a gigantic civil judgment for that speech.

Lawsuit No. 4:  The Carroll Clown Show

Author E. Jean Carroll claimed that Donald Trump had raped her in a New York department store dressing room in the mid-1990s. She did not specify a year, much less a date. In 2022, in a lawsuit financed in part by Democrat megadonor Reid Hoffman, Carroll sued Trump, first for defamation and then for the alleged sexual assault. Trump had called Carroll’s claim “a hoax” and denied having met her. While the defamation suit came first, the sexual-assault suit was the first to go to trial.

This trial never should have occurred. In 2022, New York enacted a law called the Adult Survivors Act (ASA). The ASA revived all adult claims of sexual abuse for one year, regardless of whether the statute of limitations had expired. Suppose that a 75-year-old claims that another 75-year-old abused her in 1970, 54 years ago. According to the ASA, even though the civil statute of limitations expired half a century ago, that 75-year-old would have a year to bring this claim. Such a scheme is horrifying. People rely on statutes of limitations. After a certain number of years, a matter is no longer ripe for legal review. There are crimes like murder with no statute of limitations, but this lack of a limitation period has been in law for centuries. The ASA retroactively revived long-since dormant cases, and that is a whole different kettle of fish.

The trial on the sexual assault fell into the hands of U.S. District Judge Lewis Kaplan, a Clinton appointee. The relationship between the hyperpartisan judge and Alina Habba, Trump’s lead lawyer, got so bad that Habba faced the threat of going to jail for contempt. The jury determined that Trump had not raped Carroll but that he had sexually abused her. The defamation case then went to trial before Judge Kaplan. This jury also found in favor of Carroll. The combined damages, including punitive damages, totaled over $90 million. Trump has appealed both verdicts. The Second Circuit Court of Appeals heard oral argument on the sexual assault verdict on September 6, the same day that Judge Merchan delayed the sentencing. The appeal dealt with many issues, including Judge Kaplan’s decision to permit the introduction of the so-called “Access Hollywood tape” and his having allowed testimony from a woman who claimed that Trump had groped her on an airplane in 1979. The defamation appeal is awaiting oral argument.

Like the other lawfare episodes against Trump, this one is extraordinary in a horrifying way. Trump could not be expected to be able to provide a defense to a charge with no date and not even a year. There was no physical evidence like DNA or photographs of bruising to indicate the occurrence of a sexual assault, and no other witnesses could testify about the events of an unknown day or year. If a legislature can retroactively revive claims long barred by a statute of limitations, and if a jury believes an alleged victim’s testimony, a defendant could be out tens of millions of dollars. And if a defendant dares to defend himself by calling the charges, for instance, a hoax, he could be out tens of millions more thanks to a defamation suit. This scheme is so unjust that it offends basic notions of constitutional due process.

The Stakes of the Election

President Trump’s fate depends in large part on the election result. If Vice President Harris prevails, it is certain that Jack Smith will continue to prosecute Trump, unless the Supreme Court determines that his appointment is unconstitutional. At that point, however, the other political appointees in the Kamala-Walz Justice Department could resume control of the prosecution. Trump might prevail at trial before a reasonable jury in Florida, but his conviction before a highly biased D.C. jury would be a virtual certainty. There is also no reasonable doubt that Judge Chutkan would hammer him at sentencing. She has shown how ardently anti-Trump she is, and she also has been one of the most harsh sentencers of January 6 defendants. If she gets the chance, she will make sure that Trump rots in a cage for the rest of his life.

A Trump victory in November would ensure that he would not go to prison based on Bragg’s case at least until 2029 if at all, if the appellate courts fail to stop this clearly illegal political persecution. Even though Trump does not have a criminal record, it is likely that, if given the chance, Judge Merchan would send him to Rikers Island, the notorious jail where prisoners await trial and those convicted serve short sentences. Judge Merchan’s daughter Loren would certainly raise a lot of money off that republic-ending travesty. If Trump prevails, it is doubtful that Judge Merchan would try to throw Trump in prison in the month and a half between the potential sentencing and the inauguration. If he were to act rashly, however, either a higher court in New York or the United States Supreme Court would almost certainly put a stop to his shenanigans.

The Georgia appellate courts should end Fani Willis’ lawfare against Trump. If Trump wins the White House again, even if the case is not dismissed, Trump would not face trial until at least 2029. By that point, a new district attorney might decide to drop the case. The Georgia Court of Appeals hopefully will put an end to this and disqualify Willis, a decision that should be affirmed in short order by the Georgia Supreme Court. Given her disgraceful conduct, Willis has more than earned that remedy.

If Vice President Harris prevails, the Supreme Court almost certainly will no longer be a safeguard against the anti-Trump lawfare. The Vice President has indicated that she is open to packing the Court with hardcore leftists who undoubtedly will be clones of Judges Merchan, Engoron and Chutkan. They will serve as rubber stamps for Smith, Bragg, James and Willis. Trump thus will spend the rest of his life in prison based on charges that never should have been brought. He also might face the lesser consequence of bankruptcy if a Supreme Court packed with leftists gives its blessing to the nearly half a billion dollars in judgments against him from New York courts.

This election will decide whether the lawfare waged against President Trump for so many years and on so many fronts will be rewarded or punished. Several juries have rendered verdicts, and President Trump has appealed. In mere weeks, voters will deliver the most crucial verdict, and it is unappealable. President Trump’s fate is now in the hands of one more jury: the American people.

Mike Davis is the Founder and President of Article III Project.

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