I am no fan of Donald Trump. I am no fan of vigilante justice either.
“Lock him up!” in the context of a Kamala Harris rally is as obnoxious as “Lock her up!” was in 2016 at Trump rallies when he ran against Hillary Clinton and she was under investigation for posting classified information to private email servers.
It is abhorrent to our law and our way of life for a frenzied mob of partisans to incarcerate a political opponent. If a political figure commits a crime, like Sen. Bob Menendez (D-N.J.), the question of guilt is left to juries and the question of sentencing to the courts. It is called due process, and it is the crown jewel of our legal system.
It is beyond question that Trump started this baleful trend in 2016. He now claims that he never said “Lock her up.” But he did, and that’s one of the many reasons I would never vote for him.
But with Trump having started it, it is now up to Vice President Kamala Harris to end the cries for his incarceration.
I suppose the criminal conviction of a presidential candidate on 34 felony counts is fair game for political comment, as it has never happened before in our history. Gov. Tim Walz in his Philadelphia debut was willing to make political hay. In a zinger that brought down the house, he said, “And make no mistake, violent crime was up under Donald Trump. That’s not even counting the crimes he committed.” Hyperbolic, funny and fair game.
Now, with the explosive and exciting candidacy of Harris and Walz, the mob is at it again. At Harris rallies, when she or Walz refer to the “crimes” Trump has committed, the frenzied crowd responds to the point with a chorus of “Lock him up!” And Harris calmly but firmly shuts it down.
“Well, hold on,” she said last week to her own crowd. “You know what, the courts are going to handle that part of it. What we’re gonna do is beat him in November.” Harris is a lawyer and a former prosecutor. She understands the fine points.
However strong the evidence, it is not a foregone conclusion that Trump will be locked up for anything. The cases against him are dissolving like a lump of sugar in hot tea. He is in a murky legal position that might take years to resolve.
Trump has been indicted in four jurisdictions. Thanks to the Supreme Court, the most important case, arising out of the events of Jan. 6, is in tatters. We may not know for years whether his fake electors scheme, his pressuring of Vice President Pence, his incitement of his followers to storm the Capitol and his waiting in the White House for three-plus hours were private criminal acts for which he can be prosecuted, or official acts for which he is presumptively immune.
Washington trial judge Tanya Chutkan had hoped to put the case back on a fast track, but the prosecutors asked for a three-week delay “to assess the new precedent set forth last month” by the Supreme Court, in consultation with “other Department of Justice components.” Strange request. Smith’s team has had more than a month to consider the matter since the Supreme Court handed down its July 1 decision. The way forward may well be to drop the case entirely.
The case in Florida involving the mishandling of classified documents has been dismissed because the Trump-friendly Judge Aileen Cannon thinks the government lacked the authority to appoint Jack Smith as special counsel. The Justice Department has appealed the case, and most lawyers I talk to think the decision was wrong. But who knows what the 11th Circuit or eventually the Supreme Court think? We know what Justice Clarence Thomas thinks, but that’s another story. For the time being, score another one for Trump.
The Fulton County, Ga. “find me the votes” case, once thought to be serious, has also been shredded. Trump got a gift from the skies when it was revealed that District Attorney Fani Willis had an affair with her chief assistant prosecutor. The trial judge held that Willis could stay in the case if her chief assistant resigned. He did, but Trump appealed, and the case was officially stayed until at least October, when an appeals court will hear arguments challenging the trial judge’s decision.
Since the Supreme Court immunity decision, it has become more complicated than that. Michigan Law Professor Barbara McQuade, a leading legal analyst, says that the Georgia case “is now subject to the same scrutiny as the federal case.” After Willis’s status is sorted out, there will inevitably be a motion to dismiss on grounds of immunity. Who knows whether that one will also end up in the dustbin of history?
That leaves the New York case, where Trump has been convicted on 34 counts of creating false records to cover up a payment to a porn actress. Sentencing has been scheduled for Sept. 18, after which Trump will undoubtedly appeal.
Trump has moved before the trial judge to vacate the conviction based on the Supreme Court immunity decision. His position is tenuous, as the case involves pre-presidential conduct. In the immunity case, Chief Justice John Roberts suggested that pre-presidential acts would not be immune from criminal prosecution. And there other legal issues in the case, which may lead the New York appellate courts to overturn the conviction.
Due process and political stagecraft are both constitutionally protected goals. Here they would appear to be on a collision course.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
