Candidates and Court Calendars

Tonight, all eyes are turned toward Russia. Yevgeny Prigozhin, the volatile head of the Wagner Group, claims to be leading his troops from Ukraine into Russia. The Russian government is calling it a coup attempt. The Wagner Group, a private mercenary organization, has been fighting in Ukraine for Russia. No one knows for certain where this is heading as I’m writing Friday evening. But there is no doubt most people, whether they will admit it publicly or not, are relieved that Joe Biden, surrounded by competent advisers, is at our country’s helm at this moment. The idea that we could wake up in the middle of the night to a Trump tweet changing the course of world history for the worse if he were in power is all too real.

If there is anything that forces people to confront the reality of what a second Trump presidency could bring, it’s a moment like this one. The prospect of the twice-impeached, twice-indicted former president being in charge of foreign policy with a cornered Russian leader fighting for his political future is horrifying. Putin has no regard for the rules that protect noncombatants. He has kidnapped, bombed, flooded, and starved Ukrainians. And it’s impossible to discount the possibility Trump could win again, especially with a political group called No Labels advocating for a “unity ticket” and Trump far out in the lead in the Republican primary.

In 1988, the televangelist Pat Robertson was running for the Republican nomination to be president of the United States when he faced a critical choice. He’d filed a libel lawsuit in 1986 against a sitting member of Congress, Indiana Democrat Andy Jacobs, and former California Republican Congressman Pete McCloskey, claiming the two had libeled him over his Korean War record. McCloskey, who had served alongside Robertson, claimed that Pat’s father, then-Virginia Senator Willis Robertson, had him pulled off his ship before it departed Japan for Korea. At the time, the life expectancy of a young lieutenant fighting in the Korean War was measured in months.

Robertson denied that his father’s political influence played any role in his reassignment from active duty in Korea. He sued Jacobs and McCloskey for libel in federal court in the District of Columbia.

After two years of litigation, the judge set the trial on the same day as the "Super Tuesday" primaries. Robertson asked for a continuance. The judge refused to give him one.

There was subtext. By the time the case was set for trial, Robertson’s claims against Jacobs had been dismissed. And the case against McCloskey seemed to lack proof he acted with actual malice—reckless disregard for the truth—or for that matter that his statements were even false. Robertson ultimately decided to dismiss his lawsuit, saying that it conflicted with his political ambitions, and that they were more important.

Donald Trump will soon face a similar problem. How do you campaign for the presidency while facing court-imposed deadlines and court dates? Trump’s case is criminal, not civil. He can’t dismiss the prosecution in Florida or wish it away, much as he would undoubtedly like to.

Robertson’s opponents for the Republican nomination were Vice President George H.W. Bush and Kansas Senator Bob Dole. Robertson argued he was the natural successor to then-President Ronald Reagan, the leader of the conservative movement. His strategy was to rally evangelical voters in Iowa, where he placed second in the caucus, ahead of Bush and behind Dole. But Robertson was unable to keep it up, ultimately losing the race to Bush.

What happened next helped to ensure evangelical Christians would become an even weightier force in Republican politics than they had already become. It’s possible that he even impacted the forces that brought Trump to office. Robertson formed the Christian Coalition of America, which mobilized an evangelical voter base to support conservative religious candidates in future races. CCA became the largest grassroots conservative political group of its day. It dominated the political landscape by sending out millions of voter guides telling religious, right-wing voters who were the “pro-family” candidates they should select at the polls. The group became a powerful lobbying force in Congress, advocating for a conservative agenda on social issues, like abortion. Robertson’s coalition building led to the Republican revolution of the mid-1990s. Republicans regained a majority in the House for the first time in four decades. Newt Gingrich became House speaker and began work on his “contract with America.”

Pat Robertson may not have gone on to win the nomination, but he did get out from underneath what had become an oppressive legal situation with minimal damage to his candidacy. Robertson, a Yale-educated lawyer, understood his case had significant weaknesses. The campaign calendar provided him with a convenient excuse for ending the case.

Trump could, at least hypothetically, do the same. A plea could be more attractive than legal proceedings where more and more evidence of his wrongdoing becomes public, especially if it’s not too late for his lawyers to negotiate a misdemeanor deal for him. If that happened, it’s not hard to imagine Trump maintaining he was forced to plead to the “witch hunt” so he could continue his campaign. He’d probably use it to raise millions of dollars.

The irony here has always been that had Trump returned documents to DOJ, even as late as when they issued the subpoena to him, he could have avoided prosecution. The indictment does not charge him with retention of any of the documents that were recovered prior to the search of Mar-a-Lago. He is only charged with the documents seized when the search warrant was executed. It is those documents, and his obstruction of the investigation, that led to the indictment—not much of a witch hunt.

One would hope that Trump’s pattern of extreme conduct would be sufficient to ensure that a misdemeanor charge is off the table, but it’s impossible to predict whether DOJ might not feel bound by its own prior precedent—the two cases involving CIA directors and similar, if not worse conduct, that we’ve discussed previously. Prosecutors might see value in having a firm conviction, even to a misdemeanor. A conviction pursuant to a plea deal could not be challenged on appeal. The government would not have to worry they could end up with a diehard Trump supporter on the jury who would refuse to vote to convict, no matter how strong the evidence. There is always risk in a jury trial. Certainty could have its appeal.

The prospect leads me to wonder how Republican voters would react to a candidate who admitted he kept classified documents he wasn’t entitled to. There have been no rules where Trump is concerned. Might this be a bridge too far even for the cultish support he has enjoyed the benefit of for so long? And, of course, a plea seems unlikely given Trump’s personality and his absolute inability to say he’s wrong, let alone to say it in open court, under oath, with the press present. His move here is more likely one that involves attempts at delay and appeal. And a plea, even though it might end the documents case, would still leave the pending prosecution in Manhattan as well as the prospect of another in Georgia and the special counsel’s ongoing investigation into January 6.

That means the former president is going to have a full dance card even before the primaries get underway. And it’s not going to clear up as easily as Pat Robertson’s did with a motion to dismiss his own civil lawsuit. Friday evening, the special counsel asked the court to move Trump’s trial date from the current date in August to December 11, 2023. The December date is a more realistic one, accommodating the complications involved in a case where much of the evidence is classified. Whether the judge accepts the recommendation is entirely up to her—she controls the calendar. Whether it sticks if she does could turn on how quickly she rules on matters before her and whether the 11th Circuit acts promptly on any appeals. But Jack Smith seems to want his day in court. He wants it this year. That’s a good sign that he’s both confident and ready.

The first Republican debate is on August 23 of this year. Voting for candidates likely starts in January 2024 in Iowa and New Hampshire. Will the calendar break Trump? Will the evidence of his crimes sink in and finally break the fever dream that’s kept him at the helm of the Republican party? It’s going to be a fascinating primary season. And an important one, too. We do not live in a safe moment for Trump to be in the White House. Of course, no moment where he’s there is a safe one for the Republic.

We’re in this together,

Joyce