Trump’s criminal trials dominate race for White House amid deep political divides in U.S.

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Within an hour of Donald Trump surrendering at Atlanta’s decrepit county jail this week to be booked for racketeering, his campaign had plastered his scowling mugshot on t-shirts and started selling them for US$47.

It offered a preview of how thoroughly the former president’s four criminal trials are set to dominate the 2024 race for the White House. And it was an illustration of how he is reframing his 91 charges in a starkly divided country. While prosecutors accuse Mr. Trump of a wide range of illegal acts that would normally end a political career – plotting to overthrow the government he seeks to lead chief among them – he casts himself as victim of an establishment bent on taking him down.

“What has taken place here is a travesty of justice,” he declared after his Georgia arrest, before repeating his lie that the 2020 election had been rigged. “I did nothing wrong.”

Mr. Trump’s determination to forge ahead and his unwavering base of support have the U.S. facing a range of once-unimaginable, but now suddenly plausible, scenarios. A leading presidential campaign could end up being conducted from prison, for instance, and a potential future president might attempt to pardon himself. In the immediate term, the country will undergo the test of trying a former leader accused of attempting an unprecedented insurrection without deepening its political fissures in the process.

The first crucial question the courts will have to determine is a calendar for Mr. Trump’s four cases: federal and state indictments for trying to illegally cling to power after his 2020 election loss to Democrat Joe Biden; a federal prosecution for absconding with military secrets and other classified documents; and state-level charges of falsifying business records to cover up a hush-money payment to a porn star.

Mr. Trump is scheduled to go to trial in New York on the hush-money case in March of next year and in Florida on the documents case in May. Special counsel Jack Smith is seeking a January trial date for the federal elections charges while district attorney Fani Wallace wants to start the Georgia trial this October. The former president’s legal team is trying to delay all proceedings until well after the election.

Jacob Frenkel, a former federal prosecutor who handled political-corruption cases, said the courts will have to balance Mr. Trump’s right to a fair trial with the government’s interest in getting the cases resolved before the election. The courts could set tight deadlines for pretrial motions, for example, to make sure relevant legal issues are given a hearing but dealt with swiftly. With such an approach, he estimated, Mr. Trump could realistically start at least one of his trials between midwinter and early spring of 2024.

“I think the courts will be sensitive to the political calendar but will not allow the political calendar to drive the schedule,” said Mr. Frenkel, who now works for the firm Dickinson Wright.

Among the many logistical issues to sort out are co-ordinating the schedules of Mr. Trump’s 18 co-defendants in the Georgia case, some of whom disagree about when and in which court they should be tried; access to classified documents for the defence and the court in the Florida case; and possibly litigating any issues of executive privilege Mr. Trump tries to raise.

The cases’ timing will determine whether Mr. Trump will have to balance defending himself in court with campaigning in the Republican primaries, which run from January to June, and whether the prosecutions will finish before the July nominating convention and the November election.

Whatever the outcome, there is no prohibition in the U.S. for anyone charged with or convicted of a crime from running for or serving as president.

Two conservative legal scholars, however, argue that the U.S. Constitution should bar Mr. Trump from office, regardless of the court cases. The 14th amendment prohibits former government officials who “have engaged in insurrection or rebellion” against the U.S. from ever running again. Passed in 1868, the language was meant to exclude former Confederate leaders from returning to power. In an article for the University of Pennsylvania Law Review, William Baude and Michael Stokes Paulsen contend that the wording is broad enough that it still applies.

“It disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” write Professors Baude and Paulsen, both members of the right-wing Federalist Society.

They contend that elections officials have an obligation to keep Mr. Trump off the ballots in their states to comply with the amendment. So far, no one has signalled they will do this and no one has attempted a court challenge to get the amendment enforced. But either could happen before the election, which would almost certainly end with a legal battle that could go to the Supreme Court.

The indictments have not had any effect on Mr. Trump’s popularity. He holds a roughly 40-point lead in recent polls of Republican primary voters and is competitive with Mr. Biden in a prospective rematch.

Most of his challengers for the nomination have shied away from criticizing him directly. But they argue that allowing the election to become a referendum on Mr. Trump’s actions will help Mr. Biden by keeping the focus off criticisms of his governance.

At the Republican debate in Milwaukee this week, Florida Governor Ron DeSantis became exasperated when asked about the Jan. 6, 2021, riot at the U.S. Capitol. “Is that what we’re going to be focusing on going forward, the rehashing of this? The Democrats would love that,” he said.

Much of what Mr. Trump did, particularly in the elections cases, is not actually in dispute: His demands that various officials throw out Mr. Biden’s victory are on tape, in writing and, in many cases, were made in pubic speeches and tweets.

Instead, the prosecution will turn on whether these actions were criminal. The former president has argued that he did nothing wrong because he sincerely believes the election was stolen. Mr. Smith has pushed back with examples in his indictment of many of Mr. Trump’s own advisers repeatedly telling him Mr. Biden’s victory was legitimate.

Daniel Richman, a Columbia law professor and former prosecutor, said “the issue will be intent and knowledge,” with Mr. Trump’s defence team likely arguing that “he had a firm and good-faith belief that something awful was happening and he needed to act.”

However it turns out, there is little precedent for a case of such magnitude.

When former vice-president Aaron Burr was tried for treason in 1807, for instance, the indictment foundered because of very little evidence – a far cry from the voluminous records prosecutors are expected to introduce in Mr. Trump’s case. In the cases of other top leaders accused of abusing their power (such as former president Richard Nixon) or abrogating the Constitution (such as Confederate president Jefferson Davis), no criminal charges were ever brought.

“It’s all uncharted territory,” Mr. Frenkel said. “We’re going to watch the law being made.”

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