What makes the US legal system so vulnerable to people like Donald Trump
March 31, 2024 10:19 AM   Subscribe

As a non-American, I have a hard time understanding how Trump and his lawyers, usually presented as incompetent idiots, are able to run circles around the US legal sytem. This is not question about Trump, but about the functioning of American justice.

Take the Classified Documents case for instance. The charges are extremely serious (violation of the Espionage Act, conspiracy, obstruction of justice etc.), with penalties up to 20 years. For all we know, Trump sold highly classified information to enemies of the USA and he could still be doing it, currently endangering his country and it allies. Classified documents are classified for a reason. One would expect that Trump would be taken away and interrogated for a while by a people from Three Letter Agencies until they determined whether or not he's a traitor and a danger to the nation.

Instead of that the case has been going on for two years, and Trump has been able to delay the proceedings forever. Everything in the cases Trump is fighting seems to depend on the goodwill of judges, with nothing remotely "automatic". He's doing nothing illegal here: the system just makes it possible for him to do this, again and again. Is this a problem of common law versus civil law, where, to my (limited) understanding, judges don't get to interpret the law, just apply it?

In other words, if Trump was standing in the middle of the Fifth Avenue and started shooting people, would it be possible for his laywers to claim that he's legally authorized to do so because REASONS, preventing the police from stopping him, and forcing a court to spend months examining whether or not a former president can shoot people, and then, after a few appeals, if a judge ruled against him, the case would be sent to the Supreme Court?
posted by elgilito to Law & Government (29 answers total) 14 users marked this as a favorite
Part of it — and just part of it, there is a clear class component here — is that Trump has endless money and has found lawyers who will file anything. Usually people stop asking for delays or stop filing motions because (a) they run out of money or (b) their lawyer says they won’t do it, they have a reputation to uphold. Trump won’t run out of money and with the right wing nut job media circus a lawyer who filed stupid things can always be a circus performer instead.

But that’s just part of it. Class is a huge part.
posted by kerf at 10:27 AM on March 31 [27 favorites]

The US system assumes good faith and has deference to power.
posted by 2N2222 at 10:39 AM on March 31 [18 favorites]

I have an opinion on one thing that I perceive as different in the US. The US elects its judges and its equivalent of crown attorneys (prosecutors), unlike many countries, and so many moves in the legal system are put through both a legal and a political lens. Dragging things out in case the prosecutor is not re-elected is also a possibility so people get very efficient at dragging things out.
posted by warriorqueen at 11:27 AM on March 31 [4 favorites]

On the classified documents case, Trump got randomly assigned to a very inexperienced Florida judge who also happens to have been appointed by him while he was president. This is not considered grounds for a new judge.

It's relatively unusual for criminal defendants to want to delay their cases this much: it's really expensive. Trump is unusual in that if he delays long enough he might become President again and make the charges go away.
posted by BungaDunga at 11:38 AM on March 31 [5 favorites]

The US justice system is based on the principle that it is better that a guilty person go free than that an innocent person be convicted. This permeates the justice system, which goes to great lengths to afford those charged every possible opportunity for a fair trial, even to the point that the system can be seen as biased in favor of the defendant. As a result, people of wealth and prominence (and there's not much greater prominence than a vindictive and loud-mouthed ex-president) can often bend the system to their will.
posted by DrGail at 12:05 PM on March 31 [3 favorites]

What Dr Gail said: the system is set up to make sure people don't go to jail unjustly.

At least in theory.

In practice, you can end up in jail pretty easily (which a result of what warriorqueen points out) with one big exception.

The exception is that If you can afford lawyers, there is a nearly endless opportunity for you to appeal, seek another venue, etc etc etc.

Most people don't have millions to spend on lawyers.
posted by nothing.especially.clever at 12:39 PM on March 31 [5 favorites]

A lot of Very Serious Liberals think the absolute worst thing that can happen to a litigant is that the judge disparages their lawyer in writing while dismissing their motion. A litigant who simply does not care about this and has the resources to try things ten different ways with ten different judges is going to get lucky eventually. And they only need to get lucky once.
posted by caek at 12:46 PM on March 31 [1 favorite]

Best answer: The US justice system is based on the principle that it is better that a guilty person go free than that an innocent person be convicted. This permeates the justice system, which goes to great lengths to afford those charged every possible opportunity for a fair trial

No, no, no, no, no.

The answer is that people on every level of the judicial system have something called 'discretion'.

Police have discretion to arrest or not to arrest. Prosecutors have discretion to charge or not to charge. Judges have discretion to bail or not to bail. And all of these people making these decisions have class interests and biases that mean that if someone is rich, they think that losing their wealth and power is the worst thing that could ever happen to them, with only the second worst being being in jail. So they're willing to allow people who are rich every opportunity: the poor are quickly thrown in jail and get few opportunities.
posted by corb at 2:46 PM on March 31 [22 favorites]

Maybe just to provide some additional overall perspective about people like Trump - several Trump associates have actually been sentenced to prison, and some (at a minimum, Navarro, Cohen, Manafort, and Papadopoulos) have actually served time:

Charted: Trump world allies sentenced to prison.

In addition, of course, over 450 people went to jail for their role in the January 6 insurrection ("Approximately 467 have been sentenced to periods of incarceration"). Many of them plead guilty to begin with, which is different from Trump's approach, but many plead innocent and still went to jail.

So it's true that rich powerful white men in the USA can often delay justice and get their penalties reduced significantly, but at least some of them do ultimately actually go to jail.

Which is to say: in some respects, no one is actually like Trump, in terms of having millions upon millions of dollars of unknown origin; in terms of sheer pig-headedness; in terms of being able to take over a political party and make paying for his legal bills its primary objective; and in terms of being able to keep finding lawyers who will represent him in court, where lying and bad faith can actually carry penalties for lawyers.

(I apologize if this is an unresponsive answer; I hoped it would be helpful, but if not, of course, I hope elgilito will say so and/or the mods will delete it.)
posted by kristi at 3:06 PM on March 31 [6 favorites]

The simple answer is that Trump is spending millions of dollars per month to wage a war of attrition against every prosecutor coming after him. This includes taking multiple mid-case appeals on issues related to executive privilege, government official immunity, and others. The courts are generally deferential to hearing these mid-case appeals because some of the issues Trump has raised are unique and unprecedented or at least unclear under the law. Trump is litigating issues that have never been litigated, because no president/former president has been accused of so many crimes! So, giant money and first-impression legal questions explains a lot of Trump's ability to delay and divert.

But! He's not winning them all. The Jean Carroll case went from start to jury verdict between May 2019 and Jan 2024 and resulted in an ~$85mm verdict against Trump. The NY state prosecution went start to trial verdict between 2020 and 2024 and resulted in a judgment of ~$355mm against Trump. And the NYC prosecution against Trump starts April 15, 2024. So, he has certainly been able to slow things down, but he has also had some pretty big losses and faces more on the way. Sadly, though, it seems unlikely that anything that happens in court will do anything to neutralize him as a political force -- that's more about the politics and polarization of our time than it is about the legal system.
posted by Mid at 3:19 PM on March 31 [20 favorites]

I think it's much less about class in his specific case than it is politics.

I think there was a lot of pressure, probably from various directions, to try to avoid the appearance of a witch hunt or political retaliation (a vain attempt given that facts don't matter to the audience in question, but still). Putting him in prison before trial as a security risk, or giving him the kind of "he's too dangerous for the regular system" treatment they've given various whistleblowers and terror suspects, could itself cause a truly dangerous upheaval. There's also (I assume) been a lot of pressure to dot all the i's and cross all the t's in order to build a case he wouldn't be able to slip through; in Georgia specifically, the strategy was to take the time to build up a massive case involving 19 co-defendants.

Even so there's been what feels like an enormous lack of urgency given that the guy is basically a huge security threat to the country. But even putting aside his rabid (and violent) fan base, he also has a huge media apparatus and a huge political apparatus behind him - including people in those three-letter agencies, and Congress, and the Justice Department (remember the Mueller investigation?). He has the Supreme Court, which has actively helped him buy time. He's not only been running circles around the legal system, he's run circles around, and permeated, the entire political system and the media. The government isn't pursuing this like one single-mindedly resolved to protect the nation from an active threat, because an all-too-large part of the government is working hard to protect and crown him.

We have this idea of rule-of-law countries following serious, well-defined procedures, but all too often those procedures are under-specified and rule of law turns out to depend on political will and public sentiment.
posted by trig at 3:27 PM on March 31 [7 favorites]

What Mid said - trump is able to delay so much (a frequent strategy of his prior to all of these cases after he left office) by using the appeal process. It stops at the Supreme Court but each iteration can take a very.long.time. And from what I've read, the appeals in general have been deemed frivolous by many judges but there have been many appeals.
posted by bluesky43 at 3:27 PM on March 31 [4 favorites]

Best answer: Donald Trump is in a different position than anyone else the American legal system has ever had to handle before. That is not hyperbole. There has never been a situation like this before.

Any wealthy person can file appeals and push out the day of judgement. But judges lose their patience and eventually the day of judgement comes. The more frivolous the appeals, the more annoyed the judges get and the quicker (and possibly harsher) that judgement comes.

Things are different with Trump for three reasons. Two are qualitative, but the third is a fundamental difference.

Some judges take Trumps appeals more seriously because of the seriousness of the stakes, and the constitutional questions raised. So judges give a good faith listen to arguments that maybe they didn't need to, and certainly wouldn't from someone else. Trump has taken advantage of this.

There is also a degree of corruption in the system, whereby Republican judges and judges and justices appointed by Trump appear to be ruling in his favor for partisan reasons. The corruption of the Federal appeals courts and the Supreme Court is a relatively recent phenomenon, started by Republicans but it's gotten much worse since Trump's appointments. But even that's not the biggest difference.

The biggest difference, and the fundamental difference, is that Trump has made it clear that if he can win the election he will never go to jail. He will make sure the wheels of justice stop pursuing him as soon as he wins. He will fire and arrest anyone he has to to make sure that's the case. And so, just from a game theory perspective, his calculation is completely different from anyone else who has ever faced trial in the US before. He can benefit from a strategy of delay without repercussion if he can delay until November and win the election. That is what makes his case unique.
posted by Winnie the Proust at 6:28 PM on March 31 [9 favorites]

Class is a huge part.

What do you mean by "class" here, kerf? I ask because the old money families associated with that idea have always seen Trump as a very low-class figure: crass, vulgar and tasteless. Same goes for America's intelligentsia and its satirists. It's his exclusion from these traditional high-class groups which seems to fuel much of Trump's thin-skinned resentment.

I can see that his money sometimes buys him him special treatment and that short-term political survivalism persuades many craven Republicans to back him, but how do you see class coming into it?
posted by Paul Slade at 2:04 AM on April 1

Much is explained by the fact that Trump is a candidate for President, in fact the presumed Republican nominee. He has a 50% chance of being elected. The legal system as a whole does not want to be seen as interfering in an election.

Also, judges and prosecutors do not want to risk retaliation from Trump if he is elected. As President, he could probably make all of his legal problems disappear and would be able to exact revenge on his enemies.
posted by coldhotel at 6:53 AM on April 1 [1 favorite]

I think extended delays is a part of the process available to anyone who wants it. I had a friend who got a DWI whose lawyer kept extending it out, and wasn't actually put on trial until 2 years after it happened. If he was actually requesting those extensions, he didn't mention it.
posted by The_Vegetables at 7:23 AM on April 1

I would not say the US legal system is "vulnerable". It's more like the law never anticipated that we have someone so incompetent and potentially evil rose to the post of president, all because one party wanted to win so bad, they "bargained with the devil", so to speak.
posted by kschang at 7:46 AM on April 1 [3 favorites]

Best answer: Factor 1:

An interplay of perverse incentives in the justice system: The US has a lot of constitutional protections for defendants. We have the presumption of innocent and mistakes by prosecution can lead to permanent dismissal of charges.

But this means it is very expensive and slow to prosecute. (And expensive and slow to defend.) And since we like locking up criminals, we compensated by increasing penalties, which let prosecutors threaten huge jail times, then plea bargain. Many people convicted of crimes at all have had no trial.

A poor defendant who can't afford bail or a good lawyer gets a raw deal. A rich defendant willing to fight can make prosecution very expensive, especially in a complex case, and prosecutors need to decide if it's worth it.

Fighting like this can lead to very long sentences if you lose.

Factor 2:

Lack of elite urgency. Garland seemed to worry about charges of being politically motivated if he prosecuted, so he spent a couple years not actively investigating. For political reasons.

Judges are treating this as an unremarkable case. Even "mainstream" judges, who will not accept the ridiculous claims Trump's lawyers are making, seem willing to entertain those arguments, giving him a day in court every time he brings up some new shit.

Factor 3:

Delay is the goal. Trump (AFAIK correctly) thinks that his best chance of avoiding consequences is to be elected president again, so all he's doing is trying to get the cases to drag on. It's less challenging to just delay when you aren't trying ot win, but it costs you lawyers' fees and makes the prosecutor less likely to deal and you get a longer sentence.

If there were no other factors, Trump would be doing the equivalent of refusing to fold on a bad poker hand: It keeps the game going longer, but doesn't change the outcome, so you lose more money.

Factor 4:

For all we know, Trump sold highly classified information to enemies of the USA and he could still be doing it, currently endangering his country and it allies.

"For all we know" is doing a lot of work in that sentence. No evidence has been offered that this is the case and it's not what he's charged with.

The actual charge--mishandling classified documents--happens a lot, usually unintentionally. It's one of those cases where the penalties are severe to get people to comply quickly, which most people do. Even blatant cases are often pled down to a misdemeanor, no jail time.

What's striking here is Trump's willingness to just ignore this stuff when caught red-handed.
posted by mark k at 8:16 AM on April 1 [1 favorite]

"Class" in the US often just means how much money you have and what income/asset bracket you're in, not your generational wealth or family background. Someone can be born into a working-class home and still end up in the economic elite. (It can also sometimes mean an intangible grace and good sportsmanship, but I don't think that's how people are using it in this thread.)
posted by lapis at 9:27 AM on April 1

I have an opinion on one thing that I perceive as different in the US. The US elects its judges and its equivalent of crown attorneys (prosecutors), unlike many countries, and so many moves in the legal system are put through both a legal and a political lens.

I just want to quickly address this, because it is true in some areas of the US but in many others they are appointed, and with Judges in particular more are appointed than are elected, although states use both systems and Federal judges are always appointed.

Fani Willis, the prosecutor in the case in Georgia, is an elected official, but her staff are all regularly hired public sector employees. Scott McAfee, the judge in that same case, was actually previously a staff attorney (eventually senior assistant district attorney) in the same office that Fani Willis heads. He was then appointed (not elected) as a judge to the Fulton County Superior court by the Georgia Governor (not by Trump) to fill a retirement vacancy.

Similarly, the presiding judge in the New York case, Juan M. Merchan, was actually appointed to the NY Superior Court by the Chief Administrative Judge (not the Governor). Previously, he had been a Judge in NYC courts, appointed by the mayor. However, as in Georgia, the lead prosecutor in the case, Alvin Bragg, is an elected official, although the two lead prosecutors, Carey Dunne and Mark Pomerantz, were staff attorneys hired by the city, not elected or appointed.

That's not to say that there are not both legal and political considerations in selecting judges and also staff for the attorneys office, but I can't find a judge in the Trump cases who could be removed from their position by losing an election.
posted by anastasiav at 11:03 AM on April 1 [5 favorites]

What do you mean by "class" here, kerf? I ask because the old money families associated with that idea have always seen Trump as a very low-class figure: crass, vulgar and tasteless.

The United States tends to simplify class in ways that are fundamentally unhelpful for studying them: "Upper, middle, and working" don't really actually approximate how people are actually treated, in the way that European methods of thinking about class that Americans have internalized do.

So the old money rich families - a class above upper class bourgeoisie - do in fact look down on Trump's attempt to buy his way into them, but that doesn't mean that they aren't both fighting from on top of the pile. The majority of the 'justice system' in America is still set up to incarcerate both the working class and what Marx would have called the 'lumpenproletariat', neither of whom get the abundant chances that Trump is.

You have to think of class not as manners but as social strata.
posted by corb at 12:23 PM on April 1 [1 favorite]

"Class" in the US often just means how much money you have."

That would have been my assumption too - but the fact remains that kerf's mention of class and money at the top of this thread treats them as two separate categories. As a non-American, I was hoping to clarify what distinction he or she had in mind there and understand better how that distinction applies in a US context.
posted by Paul Slade at 12:30 PM on April 1

There's been a long list of unspoken norms that Trump and associates are blasting away, nearly free from consequences as the established order fails to respond.
posted by k3ninho at 2:27 PM on April 1 [1 favorite]

Note it's not just Trump. Texas Attorney General Ken Paxton just finally got a series of felony charges dropped with a modest settlement that does not require admitting fault. It was a strong case but Paxton was able to delay and move the case around for nine years. The impression I get is the prosecutors just finally gave up and took this agreement as the best they could get in practice.

Paxton is no stranger to avoiding legal consequences. He managed to barely avoid impeachment six months ago. Last year he settled an improper termination lawsuit after he fired whistleblowers calling attention to his corruption while Attorney General.

Paxton's dodging justice is a similar pattern to Trump, just at the Texas state level instead. A combination of abusing legal procedures to delay justice, political favoritism, and the privilege of wealth. In the past sometimes the FBI or federal courts have reined in this kind of corruption but they've mostly chosen not to with Paxton.

The US has a significantly higher level of government corruption than most of Western Europe. We rank 24th in perceptions of corruption, worse than most of Western Europe, Uruguay, Singapore, and the Seyechelles.
posted by Nelson at 2:59 PM on April 1 [2 favorites]

Eileen Cannon, the judge in the classified documents case, is effectively in the bag for Trump and purposely delaying the trial pushing it to after the election.

The DC case litigating the attempted coup has been purposely delayed by the Supreme Court to effectively make the case not happen before the election.

Both cases are being delayed for political reasons. If you follow the legal media, this is all well documented.
posted by LoveHam at 4:35 AM on April 2 [2 favorites]

The dude has enough money that he never has to accept a plea deal and gets to use every lever of delay to, well, delay. Most people don't have the money or time or lawyers and just take a guilty plea so they can move on with their lives even if it will compromise their long-term ability to find work or whatever. It's just a system where it's technically really easy to go after regular working class and poor people and technically onerous to go after rich people.
posted by kensington314 at 10:40 AM on April 2

In a way you're sort of seeing the system work the way for Trump that you would wish it worked for, say, a shoplifter.
posted by kensington314 at 10:42 AM on April 2

Response by poster: Thanks for your answers! So if I understand this well this happens because 1) the US justice system has many protections for the defendants 2) people with money, unlike poorer ones, can make an optimal use of these protections, 3) police/prosecutors/judges can exercise a lot of discretion in what they do, and 4) because of this discretion, police/prosecutors/judges treat Trump with kid gloves either because they're in his pocket or because they fear retaliation. The discretion part is the most difficult to process coming from a civil law perspective, since in these systems judges have less freedom to deviate from the statutory text.
posted by elgilito at 1:47 PM on April 2

The discretion part is the most difficult to process coming from a civil law perspective, since in these systems judges have less freedom to deviate from the statutory text.

To help understand: the legislatures continually keep increasing both the number of offenses and what should happen as a result, without funding the court systems that must process them, to the point that courts in the United States literally could not function if they both charged everyone and also allowed each person going through them due process. Plea bargains, not trials, make up about 90% of what goes on, because the courts do not have the resources for trials in most cases. So discretion is allowed, at least in part, ostensibly to decide which cases need to go to trial with the limited resources at their disposal.
posted by corb at 3:22 PM on April 2 [1 favorite]

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