Former President Donald J. Trump at his criminal trial in New York in May. It was the only one of his four criminal cases to be tried before the election.
Credit...Doug Mills/The New York Times

How Trump’s Win Helps Him Fight Off His Legal Charges

By triumphing at the ballot box, Donald Trump can dispense with federal charges against him while postponing or derailing other pending cases that have dogged him.

by · NY Times

For all that former President Donald J. Trump’s election to a second term was a remarkable political comeback, it was also the culmination of an audacious and stunningly successful legal strategy that could allow him to evade accountability for the array of charges against him.

The string of accusations lodged during the two years of Mr. Trump’s candidacy, seemingly enough to end the career of almost any politician, became in his hands a fund-raising bonanza and a rallying cry, a deep pool of fuel for his rage and a call to demand retribution. The intensity of his campaign fed off the recognition that his personal freedom could be on the line.

He was indicted not just once but twice for plotting to overturn the last election. He was accused of mishandling national security secrets and obstruction. He was found liable for sexual abuse and defamation, and for inflating his net worth. And he was found guilty of criminal charges stemming from a hush money payment to a porn star.

Throughout it all, however, starting with his first indictment in the hush money case, legal proceedings that were meant to hold him to account only seemed to strengthen his support. His political standing strengthened, he was relentless in fighting off some charges, delaying a trial on others and banking on the election itself to settle what he could not win in the courtroom.

The Justice Department has taken the position under administrations of both parties that prosecutors cannot pursue criminal charges against a sitting president to avoid interfering with his performance of his constitutional duties. That is a legal principle that the Trump administration Justice Department and his defense lawyers will surely press state courts and local prosecutors to adhere to as well.

The result is that the decision by voters this week to return Mr. Trump to the White House could lead all or many of the proceedings against him to be postponed or derailed altogether.

In pitting political power against the rule of law, Mr. Trump flipped the script he had been handed and turned the efforts of the courts to hold him to account into a core element of his campaign message.

And as the election results suggest, he managed to convince a share of his supporters that the cases brought against him were not attempts at justice, but rather an effort by Democrats to damage him and, by extension, them.

“He built a legal strategy around his political reality, and that meant he did things no regular defendant could do, or maybe would do — achieving incredible success in the cases against him,” said James Burnham, a Republican lawyer who worked in the Trump administration.

Having taken his gamble, Mr. Trump will now get his payoff.

He has promised, once in office, to have his Justice Department fire the special counsel, Jack Smith, who brought the two federal cases against him. That would effectively doom the indictment in Washington accusing him of subverting the 2020 election. And it could result in prosecutors under his command dropping Mr. Smith’s attempts to reinstate the charges in the classified documents case, which were dismissed this summer in an unexpected decision by a federal judge in Florida.

As for his two state criminal cases, Mr. Trump and his lawyers are sure to go after them by arguing that they should not survive the Justice Department guidelines that prohibit pursuing prosecutions of sitting presidents.

If that tactic is successful, it could pause or end the case Mr. Trump is facing in Fulton County, Ga., where he stands accused of conspiring to reverse his election loss four years ago.

In New York, where he is scheduled to be sentenced in state court this month in the hush money case, he has already signaled that he intends to seek a delay, forcing the court to judge the wisdom and constitutionality of imposing prison time or probation on the man who is about to become commander in chief.

Less clear is the effect of his election on the civil cases he is facing.

A state court in New York has imposed penalties of more than $450 million on Mr. Trump for exaggerating the value of his business holdings. And a federal jury in Manhattan has ordered him to pay $83.3 million for defaming E. Jean Carroll, a New York writer whose account of having been sexually attacked by Mr. Trump decades ago was upheld by the court. He is fighting both judgments.

Mr. Trump is also facing a constellation of lawsuits from U.S. Capitol Police officers and members of Congress accusing him of inciting the violence at the Capitol on Jan. 6, 2021.

Historically, the Supreme Court has shielded presidents from civil litigation based on their official actions, and a court in the Jan. 6 lawsuit is working on deciding what category to put his role into. However, the court has allowed lawsuits to proceed against sitting president for private actions, like alleged sexual misconduct.

Mr. Trump’s success in using his campaign as a protective shield has no parallel in legal or political history, and highlights the many ways in which politics and justice have become tightly, if uncomfortably, entwined since he first sought the presidency eight years ago.

“We have never really seen before criminal cases that played out more on the political stage than in the courtroom,” said Robert Mintz, a former federal prosecutor now in private practice. “Rather than focusing solely on the legal issues, the Trump defense adopted a high stakes legal gambit that transformed these criminal charges into political opportunities and essentially bet the farm on the outcome of the election.”

The story of how the efforts to hold Mr. Trump accountable wound up adding fuel to his candidacy encompasses many steps — some taken by him and some taken by others.

It emerged from his willingness to dispense with traditional political thinking and to tolerate legal risks that few other public figures would accept. And it relied on flipping the indictments filed against him on their head, recasting them as evidence that powerful partisan forces were out to get him.

But it was also assisted by a sympathetic Supreme Court majority that he helped to create. That majority first effectively pushed Mr. Trump’s federal election trial until after this Election Day as it mulled what seemed like a long-shot argument that former presidents enjoy a substantial degree of immunity from criminal prosecution, and then gave him a landmark legal victory.

Mr. Trump’s success in evading accountability was also based in no small part on luck.

In the classified documents case, he had the good fortune of drawing a particular one of his own appointees as a judge: Aileen M. Cannon, an inexperienced jurist who had previously intervened to help him in the investigation. She ultimately dismissed the charges — against decades of precedent — on the surprising grounds that Mr. Smith had been unlawfully appointed to his job.

And in the Georgia case, the prosecutor who filed the charges, Fani T. Willis, sabotaged herself and her indictment by having a romantic relationship with one of her top deputies. That decision was an unforced error resulting in defense claims that she should be disqualified from the matter, a move that left the case in limbo even before Mr. Trump’s victory at the polls.

The First Indictment

The Manhattan district attorney, Alvin L. Bragg, announced the first indictment of a former president on March 30, 2023. Whatever the legal merits of the case, it acted like jet fuel for Mr. Trump’s candidacy among Republican primary voters, who rallied around him.

Fund-raising for his campaign, which had languished for months, sprang back to life. In Republican primary polling averages, his support jumped about nine percentage points in the weeks after his announcement on his social media platform that he expected to be arrested.

He was charged with 34 counts of business records fraud for hush money payments made to a porn star before the 2016 election. While the details were seedy and embarrassing, the basic allegations had been public for years, giving the Trump campaign a chance to argue that the charges were motivated by the political calendar rather than a quest for justice.

Mr. Trump would be indicted three more times in the summer of 2023. In June, the Justice Department’s special counsel, Mr. Smith, charged him with mishandling classified documents and obstructing government efforts to retrieve them. August brought a separate indictment from the special counsel that Mr. Trump had conspired to obstruct the results of the 2020 election, culminating in the Jan. 6 riot through the halls of Congress.

Weeks later, Ms. Willis, the district attorney in Fulton County, announced a separate state indictment on charges that he and others had conspired to obstruct the election results in that state.

In Georgia, Mr. Trump’s booking photo was made public, and the reaction revealed a great deal: Democrats marveled at how far a former president could fall, while Republicans proudly wore shirts with his mug shot.

Rather than try to minimize the cases or divert attention elsewhere, Mr. Trump leaned into them and turned his court appearances into campaign stops.

Even as his fiery public attacks on the prosecutions angered judges, led to gag orders and risked his chances of acquittal, Mr. Trump relentlessly pressed his case that it was Democrats who needed to be held to account for weaponizing the justice system against him.

A Second Wind

Luck is not a strategy, but it certainly helped Mr. Trump at key moments. Months after he was indicted in Georgia, a defense lawyer in the case raised an allegation that Ms. Willis had hired a lawyer with whom she was romantically involved to manage the prosecution.

Calling that an ethical transgression, the defense sought to have the entire case reassigned. The unexpected challenge led to a widely televised, soap-opera-style hearing about the district attorney’s dating life and effectively froze the case until a state appeals court makes a decision.

However that issue is resolved, any chance of a trial beginning before Election Day vanished, and the scandal gave Republicans extra ammunition for their claims that the cases against Mr. Trump him were politically motivated.

As a criminal defendant, Mr. Trump took risks that no defense lawyer would advise. He publicly attacked judges and their relatives, witnesses and prosecutors, essentially daring jurists to slap him with gag orders, which some did. At times he seemed determined to turn courthouses into soap boxes, using them to denounce the legal system as merely a political tool wielded by Democrats.

Almost any defense lawyer would describe this as a losing strategy, and in the first instance it was. On May 30 of this year, a jury of Manhattan residents found Mr. Trump guilty on all 34 counts. It was a resounding defeat, but not the final word. Unlike most defendants, Mr. Trump’s definition of winning was not confined to — or even largely based on — what took place in the courtroom.

A Third Campaign

Mr. Trump’s strategy hinged in large part on delaying his criminal cases until after Election Day.

It mostly worked.

Perhaps his most effective effort to push off a trial came in the federal case in Washington accusing him of seeking to overturn the 2020 election. Faced with a judge, Tanya S. Chutkan, who made clear she wanted to keep the proceedings moving briskly, the former president’s lawyers banked their defense on slowing things down.

Their chief means of doing so was a legal appeal asserting he should not have been prosecuted in the first place because former presidents were largely immune from charges stemming from official acts they took in office. As a legal argument, it seemed at first like a long shot.

But as a procedural matter, it forced Judge Chutkan to postpone her initial plan to start the trial in March of this year so that the Supreme Court, with a strong conservative majority bolstered by Trump appointees, could weigh in on the question.

The justices not only took up the immunity issue, but took months to hear it and announce their ruling, all but ending any chance of Mr. Trump going before a jury before Election Day. And when the decision came down in July, the court ruled 6 to 3 that former presidents have broad immunity from prosecution for official acts.

It was a remarkable victory for Mr. Trump.

It not only redefined the limits of presidential power, but also now gives Mr. Trump wide latitude when he takes office again with a stated agenda of using his office to pursue his enemies.

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