Lawfare Meets Victory

Will Justice Finally Prevail When Trump Returns to Power?

As the lawfare campaign against former President Donald Trump proceeds, a crucial question arises: What happens to the pending court cases if Trump is elected again? Steve Sadow, Trump's lead attorney in Georgia, has already laid the foundation for this defense, arguing in December that the Supremacy Clause of the U.S. Constitution — which makes the federal government the "supreme law of the land" — would prevent any trial until after a victorious Trump left office. The legal challenges against Trump appear to be a deliberate effort to use the judicial system as a political weapon, aiming to discredit and derail his political comeback. If these efforts fail and Trump is re-elected, the constitutional, logistical, and societal challenges of trying a sitting president become virtually insurmountable. These obstacles reveal the extraordinary difficulty of bringing a head of state to justice in a highly polarized political climate.

The stakes are more than theoretical. Trump, facing ongoing legal battles, could be ensconced in the Oval Office while defending himself against charges ranging from civil lawsuits to criminal accusations connected to January 6th, 2021, and bookkeeping entries related to Stormy Daniels. The Supremacy Clause and the established norms of presidential immunity present formidable barriers to any attempt to try a sitting president. Presidents enjoy significant immunity for actions taken in the course of their official duties. This raises key questions regarding the legal challenges tied to the Georgia election case or the allegations of attempting to influence electoral outcomes. Are these actions political maneuvers, and thus protected by presidential immunity? The answer remains unclear and hotly contested. While appellate courts have allowed certain civil suits to move forward, the broader debate over what constitutes official presidential duties remains unresolved.

Adding to these legal complexities is the near-impossibility of assembling a truly impartial jury to sit in judgment of a sitting President of the United States. As appellate attorney Scott Key noted, the idea of an unbiased jury in such a high-profile case is unrealistic. Jurors would be expected to decide the fate of arguably the most powerful person in the world. The pressure associated with delivering a verdict that could alter the direction of the country is immense. Jurors would not only have to evaluate the evidence objectively, but they would also have to consider potential retaliation from a president and the broader impact of their verdict on an already divided nation. The concept of "stealth jurors" — individuals who may seek to manipulate the outcome of a trial for political reasons — is even more plausible when the defendant is as polarizing as Trump, further undermining confidence in the possibility of a fair trial.

Logistical issues further complicate the notion of prosecuting a sitting president. It's not simply about scheduling court dates; a trial of a sitting president would require a security apparatus on a massive scale, comparable to a State of the Union address or an inauguration. Fulton County, where Trump is set to face charges, would become an epicenter of chaos. The courthouse spans multiple buildings and occupies an entire city block, making it impossible to maintain normal operations during a high-profile trial involving a president. Attorney Scott Key highlighted that relocating operations outside the county to circumvent these disruptions would infringe on the constitutional right of a defendant to be tried in the appropriate jurisdiction. The physical limitations of the Fulton County Superior Court make accommodating the security needs and media frenzy associated with such a trial nearly impossible, emphasizing that attempting such a proceeding would be a logistical catastrophe.

Even if these logistical hurdles were overcome, the procedural delays and legal appeals would continue to obstruct the process indefinitely. Currently, the Georgia case is on hold while an appellate court determines whether District Attorney Fani Willis should even be allowed to continue, given her romantic involvement with a former special prosecutor. This wrinkle only adds to an already convoluted legal process. Even if a trial were to begin, the inevitable appeals could drag on for years, stalling at every point due to questions over the legitimacy of trying a sitting president and the political fallout of such an attempt.

A particularly illustrative example of these challenges is found in the New York case, where Acting Justice Juan Merchan has delayed sentencing for Trump's convictions until after the election. This decision highlights the delicate balance between the judiciary's role in ensuring accountability and the practical challenges of handling an active political candidate. If Trump were to be elected, Merchan would face the unprecedented scenario of sentencing a president-elect or a sitting president. Legal scholars are divided on whether Merchan could indeed send a president-elect to prison, especially given the broad immunity typically extended to the executive branch. Such a move would plunge the country into a constitutional crisis, raising serious concerns about the separation of powers. The notion of incarcerating a president-elect is fraught with both logistical and political perils, once again demonstrating the formidable barriers to holding a president accountable through conventional legal channels.

These numerous factors contribute to the near impossibility of prosecuting a sitting president, either legally or logistically. Whether it’s the constitutional protections surrounding presidential actions, the difficulty of finding an impartial jury, or the overwhelming logistical barriers, the challenges are daunting. Beyond the legal system’s mechanics, we must consider the broader implications for governance. Should Trump be found guilty, who would manage the executive duties? Could he serve from a prison cell, creating an unprecedented and chaotic situation for the country? The ramifications of such a trial would extend far beyond Trump himself, potentially throwing the entire American political system into disorder.

Despite the public and political commentators' calls for accountability, the intricacies of holding a sitting president legally responsible suggest that traditional legal avenues may be insufficient. The unique authority held by a president, coupled with the complexity and contradictions inherent in American law, implies that these charges may ultimately be resolved more in the realm of public perception than in a courtroom. While this might frustrate many, it reflects the gravity and intricacy of the presidency itself.