Trump's SCOTUS win becomes an October surprise

Be careful what you wish for -- and how Trump's tactics may delay but will not defeat a determined prosecutor.

At least some chickens have come home to roost. As I wrote back in June, Donald Trump’s Supreme Court win on immunity was likely to have unintended consequences — with the DC district court case suddenly yielding evidentiary bombshells just as the presidential campaign hit the home stretch.

Lo and behold, here we are with a veritable October surprise, a 165-page brief from Special Counsel Jack Smith providing a devastatingly detailed narrative of Donald Trump’s January 6 coup and why its criminal acts were most decidedly not “official acts” of the Office of the President.

The federal district courthouse in Washington, where Judge Chutkan is presiding over the J6 case against Trump. Fittingly, out front there is a monument to General Meade - the victor of the Battle of Gettysburg.

Legally, this is still just a major artillery blast in a much longer war. Politically, though, this is not exactly good timing for Trump. Then again, the Access Hollywood tape was revealed on October 7, 2016, and it was somehow already old news by the time of the election. But then again, again, back in 2016 far fewer people voted by mail or otherwise cast ballots early, whereas now, in a very real way, the 2024 election is already being held right now.

I’ll take some time to carve through the government’s brief in the next few days, yielding what I hope will be a longer piece worth the wait, but in the meantime I have a few quicker thoughts.

One of the most important takeaways here? When a defendant like Donald Trump engages in these sorts of tactics — purely designed to throw sand into the wheels of justice — it may delay but will not defeat a truly determined and relentless set of prosecutors. Indeed, being able to withstand the delays and diversions and distractions (and even defeats) is exactly what separates the successful from the unsuccessful prosecutor of a major case against a shameless predator like Trump.

John Gotti was not convicted until the fourth criminal trial against him — and he was finally brought down by lead prosecutor John Gleeson, who was on his second tour against Gotti, having stomached an earlier trial that resulted in an acquittal. Gotti’s tactics and demeanor were much like Trump’s: grandstanding and preening behavior with the media and public, pandering to the tabloids (yielding the spectacle of the New York Post providing fawning coverage of a brutal murderer), launching a barrage of despicable personal attacks against the prosecutors, issuing endless motions, refusing to follow the judge’s orders regarding courtroom decorum, daring the court to take action, all of it. Indeed, it all makes sense when one notes that Trump and Gotti share the same defense DNA: Roy Cohn was Trump’s lawyer in the 1970s and early 1980s, and he was also counsel to multiple Mafia defendants during the same timeframe.

But here’s the thing about the Cohn-Trump-Gotti playbook: it doesn’t win, not if the prosecutor refuses to back down and continues to steamroll forward. It did work in Trump’s first big case, for housing discrimination, in which the government backed down and gave Trump and his father what amounted to a slap on the wrist, after Cohn had countersued the government and mercilessly attacked the lead government lawyer. But it ultimately did not work out for Gotti, because Gleeson and his colleagues at the U.S. Attorney’s Office for the Eastern District of New York¹ simply refused to cease their operations; they kept applying resources and creativity and relentless pressure until they finally brought Gotti down.

Or consider the case against Trump University, which faced a much more banal setback — not an acquittal, but just an 18-month delay for an appeal process on a statute of limitation issue. It actually was a big deal in the context of that case, because if the limitation issue had been decided the other way, the New York AG’s case would have been gutted (I go through the whole story on this in my book). Meanwhile, the case was stalled from the fall of 2014 through March 2016 — and then Trump managed to win a delay of the trial until after the 2016 election.

Two years! The Trump University case was effectively neutralized for two years — and then it suddenly resulted in the first major legal loss he ever suffered, and at $25 million, still to this day the biggest one he’s ever paid out.

There are obvious parallels to some of the cases against Trump today, all of which have now undergone serious delays and setbacks. But all of these delays and setbacks are fundamentally temporary, at least as things currently stand:

• The DC case is now suddenly very much in the spotlight again, and there will be continued court proceedings to determine whether Trump’s alleged criminal actions were “official acts” of the presidency, followed by what will undoubtedly be a very long and detailed decision by Judge Chutkan on the issue — and then equally lengthy explorations by the DC Circuit and probably again by the Supreme Court. Does this mean Trump will stand trial before next summer? No, but the case will continue to yield revelations and headlines that may be quite negative for Trump — and I remain cautiously optimistic that SCOTUS will have ultimately delayed (and maybe narrowed) but not destroyed the government’s case.

• The Atlanta case has been stuck pending an appellate process on whether Fulton County DA Fani Willis should be disqualified from the case (again with the baseless personal attacks on prosecutors) — but this is, again, a temporary delay in the grand scheme of things. It may be well into 2025 (or, insanely, early 2026) before we actually see a trial in that case, but it remains one of serious jeopardy for Trump, because so many of his confederates have been indicted with him, and many of those have turned him, with more likely to follow.

• The Florida case is now headed for an appellate process with the 11th Circuit, which could help put the case back on track by checking Judge Aileen Cannon, or even removing her from the case. But even though this is actually the strongest case against Trump on paper, this is the case where Trump has the best chance of turning his delay into an actual defeat of the government, because of how much he managed to stack the bench with friendly judges (an advantage that Roy Cohn and John Gotti could only have dreamed of).

• The Manhattan case should have proceeded on schedule and now has been inexplicably delayed — an outcome that I will eventually discuss in greater depth, perhaps once my fury about it subsides a bit. Yet we’ve seen this movie before: Trump was also given an unmerited delay in the Trump University case (because of course we all remember the part of the Constitution where it says a criminal should get special treatment and be above the law simply because he’s running for office), and yet, right after the 2016 election, Trump was out of options. Here, as maddening as events have been, I still see a sentencing in the relatively near future, followed by (of course) another lengthy appeal process.

To be clear, some of these cases may die. Some of them may suffer even further delays. And of course, if Trump wins the election, he will likely use the power of the presidency to try to end these prosecutions. I definitely do not have a Pollyanna view of how these cases will go — but I also counsel against viewing a delay as a defeat. While a delay of six months or even two years seems like a travesty or worse, in the context of any kind of litigation it is a mere blip.

The real question is about persistence and perseverance.

And then, in the meantime, we have to do our part and bring about the political defeat that will allow these legal battles to continue.

On that note, have you checked your voter registration lately? Even if you think you’re registered, you may not be — for example, North Carolina just 86’d over 700,000 voters for changing their addresses or, appallingly, just because they missed voting in the last two elections.

Or your polling place may have changed. Or you may want to vote by mail.

Or you may want to triple check. And then make sure everyone else you know is registered too — and then actually votes. It’s going to take all of us — and in such massive numbers that it will thwart Trump’s efforts to steal it.

1. Much less ballyhooed than the Southern District across the river in Manhattan, the Eastern District USAO in Brooklyn has been much more successful at bringing down the toughest targets, from Gotti to El Chapo. They don’t get the headlines. They just get the victories. And yes, I’m more than a bit biased, as I was lucky enough to clerk in EDNY.