Largely shedding Joe Biden’s canard that Trump must be defeated to save democracy, Kamala Harris’ conceit is that she prosecutes criminals and Donald Trump is one. “I know Donald Trump’s type,” she sneers.
As San Francisco district attorney and then California attorney general, Harris supported jailing parents of truants, suppressed evidence, keeping an innocent man on death row, repeatedly covered up misconduct, leading to the dismissal of more than 600 cases, incarcerated prisoners beyond their sentences, violated Federal laws that protect donor privacy, and failed to disclose conflicts of interest arising from her personal relationships. Her record of abusing prosecutorial power fits perfectly with Democrat lawfare against Trump and his advisers.
Now, following setbacks for prosecutors, Trump will have a reprieve in further substantive proceedings until after the election.
- Colorado, Maine, and Illinois declared Trump an “insurrectionist,” ineligible for the presidency under the 14th Up to 32 other states were considering doing the same. In Trump v. Anderson, the U.S. Supreme Court unanimously rejected this travesty. Among other failings, the states violated a requirement that Congress determine the process, and Trump has never been indicted for, let alone convicted of, insurrection.
- The left’s least favorite judge, U.S. District Court Judge Aileen Cannon, dismissed the Mar-a-Lago classified records case, holding that Jack Smith’s appointment as special prosecutor violated the Appointments Clause of the Constitution (Article II, § 2) and his use of a permanent indefinite appropriation violated the Appropriations Clause (Article I, § 9). The government refused a compromise that might have saved the case, and is appealing.
- In Trump v. United States, a 6-3 court held that a president is immune from prosecution for official acts, his motives cannot be questioned, and his official acts may not be used as evidence in a prosecution of his private acts. Smith has filed a superseding indictment that suffers many of the same defects as the initial indictment, including as to immunity, novel legal theories, and the First Amendment rights of free speech and petition. Despite U.S. District Court Judge Tanya Chutkin’s best efforts to move the case forward, she has bowed to reality and delayed the next hearing until after the election.
- In Fischer v. United States, the Supreme Court threw out federal prosecutors’ use of 18 U.S.C. § 1512(c)(2) to prosecute Jan. 6 defendants for interfering in congressional proceedings, holding that the statute is limited to tampering with, or destroying, official records. That ruling also will narrow Trump’s election fraud case.
- A Georgia appeals court agreed to hear a challenge to Fani Willis’ right to remain as prosecutor, scheduling arguments too late for a trial this year. Even if Willis prevails, the immunity decision, First Amendment, and misapplication of the Georgia RICO statute likely will doom her case.
- A Nevada court dismissed an indictment against six Republicans accused of submitting certificates to Congress falsely declaring Trump the winner of the state’s 2020 presidential election.
The New York cases are more problematic abuses by prosecutors who ran on platforms of “getting” Trump:
- There are at least a dozen reasons Trump’s conviction in New York District Attorney Alvin Bragg’s business records case should be reversed. Trial Judge Juan Merchan has delayed sentencing until Nov. 26, but he first must rule on whether to vacate the verdict because he allowed testimony by federal officials (Hopes Hicks and Trump’s assistant) about Trump’s official acts as president, now prohibited by the Supreme Court’s immunity decision. More damaging, in Erlinger v. United States, the Supreme Court held that a unanimous jury verdict is required for any factual finding that increases a potential sentence. Merchan did not require unanimity to identify the so-called “other crime” used to convert an expired business records misdemeanor into 34 felonies.
- Judge Arthur Engoron found Trump liable in New York Attorney General Letitia James’ so-called civil fraud case for misstating asset values in loan applications, though the banks testified they did not rely on the statements, lost no money, and would continue to do business with Trump. Engoron ordered Trump to pay $455 million and forfeit his New York businesses. The New York appeals court stayed most of Engoron’s ruling and allowed Trump to post a reduced bond of $175 million for his appeal. The finding of liability may survive, but the penalties should be vacated as excessive under the 8th Amendment and Article I §5 of the New York Constitution, among other flaws.
If Trump is elected, he can order that the federal prosecutions against him end, or pardon himself, and the state cases likely will be delayed until he leaves office. If Harris wins, the Democrats can be expected to press forward. Though Trump’s legal team has carved back most of the cases and will continue to do so, a conviction still could mean jail time.
Democrats are doing better in their lawfare against Trump’s advisers, who have limited immunity defenses. Several are defendants in Georgia, Arizona, and Michigan. Rudy Guliani and John Eastman are being disbarred, and at least eight other Trump lawyers face disciplinary proceedings. Peter Navarro and Steve Bannon were jailed for refusing to testify to the Jan. 6 Committee. The last time a recalcitrant congressional witness was jailed appears to be 1948.
But for Trump’s wealth and perseverance, he might now be in jail. Democrats financially destroyed or jailed his closest political advisers and are broadly threatening Republican party lawyers. Usually, Harris talks about the criminal justice system from the far left. But, like other progressives, when she is in pursuit mode, the Constitution, equal justice, and fundamental principles are mere affect.
Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and a frequent speaker and contributor to media, including The American Mind, National Review, the National Association of Scholars, television, radio, and podcasts.
