By Aruna Viswanatha and Sadie Gurman
Donald Trump’s political opponents had hoped his legal difficulties would torpedo his third run for the presidency. But a knockout blow before the election is looking increasingly unlikely.
The former president, who looks poised to sew up the Republican presidential nomination after his win Tuesday in New Hampshire, is proving less vulnerable on the legal front than many of his critics predicted.
His lawyers are having success maneuvering to delay any legal reckoning. And he has profited from good fortune in the two trials that pose his greatest political vulnerability: those on his efforts to reverse his 2020 election loss.
Thanks to a serendipitous challenge to a law he has been charged with breaking, the Supreme Court could water down Trump’s federal election-interference case in the coming months. Meanwhile, the parallel prosecution in Georgia faces steeper odds after allegations the prosecutor leading it may have hired a paramour to run the trial.
All the while, Trump has raised money on his legal battles, seeing his support grow as he depicts himself as a victim of partisan prosecutors marshaling a crooked justice system to thwart his bid for a second term in the White House. Prosecutors have denied that claim.
“Everything has broken his way in connection with feeding his political narrative of being a victim,” said Ty Cobb, a now critical former Trump lawyer. “He’s had some very lucky breaks.”
Trump spokesman Steven Cheung said the former president’s campaign trail success is a sign that some voters view the prosecutions as politically motivated, adding that Trump would win the election in “dominating fashion.” A spokesman for the federal special counsel, Jack Smith, declined to comment, and a spokesman for Fulton County, Ga., District Attorney Fani Willis didn’t respond to a request for comment.
A conviction could still pose general election problems for Trump. An exit poll published by CNN found that 42% of New Hampshire Republican primary voters, who include a sizable number of independents, said Trump would be unfit to serve if convicted. A Wall Street Journal poll in December found Trump leading Biden by four points, but Biden winning by one point if Trump had a federal conviction.
A legal obstacle course
Trump was charged last year in four separate criminal cases totaling 91 criminal counts. Two cases relate to his efforts to overturn his 2020 election loss, including one from local prosecutors in Georgia and one from Smith, the federal special counsel. Another case from Smith charged Trump with improperly retaining classified documents after leaving office, and a fourth came from local prosecutors in New York over his hush-money payments to Stormy Daniels during the 2016 election.
Trump’s opponents long cast that legal obstacle course as possibly fatal to his 2024 prospects. “The problem for Donald Trump in all of this is his own conduct. He’s his own worst enemy,” former New Jersey Gov. Chris Christie said after Trump’s first federal indictment last year.
At least for primary voters, that argument has fallen on fallow ground. This month, Christie dropped out of the GOP presidential nomination race with his campaign stalled.
Meanwhile, Trump’s supporters rallied around the former president’s accusation of an organized “witch hunt,” as did most of his primary rivals, keen not to alienate his devoted base. Even his one remaining Republican rival, Nikki Haley, has only obliquely referred to Trump’s legal jeopardy, calling him an agent of “Republican chaos.”
Trump, whose mug shot has become a campaign point of pride, has yet to face any comeuppance in court. He is scheduled to go on trial on the federal election-interference charges in Washington on March 4. But that date is on hold as he appeals his claim, rejected by the trial judge, that a former president generally can’t face criminal prosecution for official acts he took while in office.
Courts have been skeptical of the sweep of Trump’s immunity claim, but the challenge, which he is expected to try to take to the Supreme Court, is likely to delay any trial for several months.
Unforeseen support
An unrelated case the Supreme Court has already agreed to hear could also help Trump at trial. Joseph Fischer, a small-town police officer from Pennsylvania who participated in the Jan. 6, 2021, pro-Trump riot at the U.S. Capitol as Congress met to certify President Biden’s election win, is one of hundreds of Jan. 6 defendants charged with obstructing an official proceeding.
That charge also comprises two of the four counts Trump faces. It stems from a provision of the Sarbanes-Oxley Act of 2002—enacted after the Enron financial scandal—making it illegal to destroy records to interfere with official proceedings, or otherwise obstruct influence or impede them. Fischer challenged the use of the statute, saying Congress’s vote certification wasn’t the type of proceedings the law was intended to cover. If Fischer wins, Trump could, too.
“The question is, can you obstruct justice even when there is no evidence, or no investigation?” said Nick Smith, who unsuccessfully argued the case for Fischer and several other Jan. 6 defendants before a federal appeals court.
Prosecutors counter that the law properly covers the rioters’ violent actions, which forced lawmakers to halt the proceedings and flee to safety.
The high court could also narrow the law’s scope so it doesn’t limit Trump’s case, which accuses him of fraudulently trying to alter the documented electoral results. “If Sarbanes-Oxley history requires some sort of document offense, then we have that,” said Timothy Heaphy, who was the chief investigative counsel for the House panel investigating the Jan. 6 attack.
Either way, the open case could force the judge to push back the trial further until the Supreme Court decides, legal experts said, likely in June.
Trump also could get a break in Georgia. Fulton County District Attorney Willis is facing allegations made public this month that she was dating special prosecutor Nathan Wade when she awarded him a lucrative contract to take on the case, and that Willis herself benefited financially from the arrangement. Willis hasn’t commented on the allegations directly but has attributed the criticisms to racial bias.
Those allegations aren’t likely to force either Willis or Wade off the case, some legal-ethics experts have said. But they could infect the case at trial, where any local juror will have heard about their alleged affair, said Chris Timmons, an Atlanta defense lawyer who has prosecuted cases under the same racketeering law used against Trump.
“I have lost cases that were slam dunks when jurors thought the evidence was there but said, ‘We don’t think it’s fair,’ ” said Timmons, who is an ABC News contributor. “If they look at this and think there is something wrong with the investigation, even if they think the evidence is there, they will express their displeasure by acquitting.”
Slowly wending its way through court in South Florida, meanwhile, is the federal case stemming from Trump’s handling of classified documents at his Mar-a-Lago club. That trial is set for May, but a likely postponement has been signaled by the judge, U.S. District Judge Aileen Cannon, who was nominated by Trump in 2020 and confirmed by the Senate shortly after his November electoral loss.
Trump’s lawyers have privately cheered the random assignment process that directed his case to Cannon, who has allowed lawyers to tangle for months over evidentiary issues, criticized prosecutors and said she would revisit in March Trump’s request to push off the trial date.
“He got incredibly lucky to get that judge,” Cobb said.
So far, the criminal cases have only buoyed Trump. A Journal poll in December 2022 found the former president’s standing among Republican voters had fallen and that Florida Gov. Ron DeSantis held an early lead over him for the 2024 nomination. A year and four indictments later, DeSantis ended his presidential bid this month and endorsed Trump after losing to him in Iowa’s caucuses by 30%.
Thwarting a Trump victory was never a factor in getting grand juries to indict him, prosecutors have said repeatedly, but that intent remains a watchword among Trump supporters. “If creative prosecution was designed to hurt him politically, it clearly hasn’t,” said James Trusty, another former lawyer for Trump.