Former President Donald Trump is likely far from a full reprieve in his never-ending legal saga, but he could soon see victories in the courtroom, including in his fight to remain on state primary ballots.
Trump, who has all but assumed the mantle as the Republican nominee to take on President Joe Biden in the November general election, is preparing to make his case before the Supreme Court as to why he should remain on state primary ballots. The Feb. 8 oral arguments at the high court stem from his appeal of a 4-3 decision by the Colorado Supreme Court that disqualified him from appearing on the ballot under the 14th Amendment’s insurrection clause.
From a likely win on ballot eligibility challenges to turbulence in the Georgia election interference case to polling that suggests voters are unphased by Trump’s legal problems, glimmers of hope may be emerging in a legal picture for Trump that once looked bleak.
Several prominent legal experts have said the Supreme Court will likely decide the 14th Amendment case in a way that allows Trump to remain on the primary ballot in Colorado, thus creating a domino effect for his qualification in states across the country that have seen similar challenges to remove him over allegations that he played a role in the Jan. 6 riot.
John Yoo, a professor at the University of California, Berkeley School of Law, stated during his appearance on a panel for the Hoover Institution on Jan. 12 that he thinks the public will see “light speed” in terms of how quickly the justices will rule in favor of Trump.
“I don’t think that the founders, the people [who] wrote the 14th Amendment, and I certainly don’t think the Supreme Court will think that there should be 50 different states all interpreting the 14th Amendment differently,” Yoo said, adding that the Supreme Courts of Minnesota and Michigan have issued separate rulings that Trump can remain on the primary ballot in those states.
The panel also included New York University law professor Richard Epstein, who also expressed confidence that the Supreme Court would reverse Colorado’s decision.
“What you must do is to simply say that this is an issue, which is a political question, and the courts have nothing to do with,” Epstein said.
The NYU professor added that Colorado made a “common mistake” in the understanding of how Section 3 of the 14th Amendment applies to the former president. Epstein highlighted that the text states, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office … or as an officer of the United States” if they have “engaged in insurrection” against the United States.
Epstein said one of the many things the Supreme Court will have to grapple with in its decision is whether the Constitution intended the office of the president to be subject to the 14th Amendment; both he and the trial court judge in Colorado who initially ruled on the ballot eligibility challenge said the presidency was excluded.
More than 40 lawsuits have been filed, sometimes in two state courts at once, seeking to keep Trump off primary election ballots. There are 13 states where such lawsuits are pending, nine states where lawsuits were dismissed by plaintiffs, six states where the courts dismissed such challenges, and three states where lawsuits were dismissed on appeal, according to Lawfare. Maine and Colorado are the two states that have disqualified Trump pending appeal.
Days after the Dec. 19 decision by the Colorado Supreme Court, Maine Secretary of State Shenna Bellows, a Democrat, decided on her own to disqualify Trump from the state’s primary ballot. She is appealing a decision by a judge to postpone any review of her ruling while the Supreme Court weighs the Colorado case, but her removal of Trump will inevitably have to follow the ultimate decision by the justices.
About his four respective criminal indictments against him, which in total include 91 charges, the former president has seen his fair share of victories and losses in pretrial proceedings.
Trump has, for example, succeeded in an effective delay of the March 4 trial in the 2020 election case that charges him with four counts related to alleged attempts to upend Biden’s victory. U.S. District Judge Tanya Chutkan ruled against his claims of presidential immunity from criminal prosecution last year, prompting a review of such claims by the U.S. Court of Appeals for the District of Columbia Circuit that is still ongoing. Despite a broad swath of legal experts who say the panel will rule against Trump, the losing party can still appeal to the Supreme Court, which could result in an extended delay of Trump’s jury trial depending on whether the justices will decide the case on their own or grant the case for oral argument.
And because Trump is contesting his immunity claims, Chutkan lacks jurisdiction to preside over the case and clarified last Thursday that Trump should not be required to litigate at the trial level until the appeal is resolved. While she has not delayed that trial, legal experts say there doesn’t appear to be a clear shot at starting it on the initially slated March 4.
The likely delays represent a victory for Trump, who has sought to push back the timeline of all his legal proceedings as he pursues the presidency.
Still, Trump did see a defeat by the same appeals court on Tuesday, when the full D.C. Circuit denied his separate request to reconsider a gag order in the election subversion case.
Trump is also facing two state criminal indictments, one in New York on 34 felony counts of falsifying business records related to his role in hush money payments to porn star Stormy Daniels toward the end of his 2016 presidential campaign. While prosecutors from Manhattan District Attorney Alvin Bragg’s office said they would be willing to delay the scheduled March 25 trial in deference to the federal election interference case, Trump likely won’t know if that trial will be delayed until the next hearing before state Judge Juan Merchan on Feb. 15.
The other indictment in Fulton County, Georgia, is moving along steadily despite the unclear timing for when a trial will actually begin in the sweeping racketeering case.
However, recent developments in the Peach State have fueled Trump supporters’ claims of a corrupt system — and opened the door for challenges to the prosecution.
District Attorney Fani Willis is facing unusual setbacks after she, a co-defendant in the case, alleged she was romantically involved with the special prosecutor she hired, Nathan Wade, and that she benefited from vacations financed by Wade. She is facing calls to be deposed in Wade’s divorce case, and Trump co-defendant Mike Roman convinced Superior Court Judge Scott McAfee to hold a hearing over his motion to disqualify Willis and Wade, which also seeks to toss the charges against him, Trump, and the other 13 remaining defendants.
The former president still has many troubles ahead in his separate federal criminal case over his alleged mishandling of classified documents and efforts to obstruct an investigation, which could possibly be the strongest case he faces. While U.S. District Judge Aileen Cannon, a Trump nominee presiding over the case, has scheduled the trial over the classified documents matter for May 20, she has also left open the possibility for delay.
Trump’s long-term strategy has always been to delay his criminal trials for as long as possible, given that if he wins reelection, he can easily have them terminated. That’s coupled with the consensus among legal pundits that Trump likely will face a conviction in the 2020 election subversion case — if not on the merits of the evidence, which is voluminous, then purely because the Washington, D.C., metropolitan area has historically held unfavorable views of Republican candidates.
Trump’s efforts to delay have also dovetailed with a new political campaign and legal strategy in which his appearances in courtrooms have blurred into a quasi-campaign rally each time he shows up in court.
For Trump’s two open civil trials, one that accuses him of inflating his net worth to secure favorable business loans and a separate defamation trial involving E. Jean Carroll, he has sought to appear in those New York-based courtrooms largely out of protest and in strident defense of himself. The damages being sought in both cases are mostly monetary, and Trump has often broken courtroom decorum to decry such challenges as “politically motivated” side challenges to his already cluttered legal calendar.
While Trump’s trajectory in courts has featured an up-and-down roller coaster of surprises, the former president’s success on the campaign trail, his sweeping victory at the Iowa caucuses and narrowing of the primary to a two-person race between former U.N. Ambassador Nikki Haley included, has left few doubts that he will become the Republican primary nominee.
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And because the 2020 election subversion case has progressed much further than any other criminal case against Trump, all eyes will remain on it and whether he can successfully delay the trial ahead of the final months of the race. In each criminal case against him, Trump has pleaded not guilty.
If Trump is convicted, his campaign could turn the verdict into an even deeper referendum on his legal woes. Supporters of Biden would likely be inspired to vote for their candidate of choice knowing that Trump could see years of imprisonment if Biden wins, while Trump supporters could see the election as an opportunity to oppose what they see as a wrongful persecution.