MAKING HISTORY
- Geoff Schoos
- Jan 16
- 9 min read
Pursuant to the 20th Amendment, at noon on January 20, 2025, Donald Trump will be sworn in as the 47th President of the United States. What a journey we’ve taken since George Washington was sworn in as our first president to Donald Trump taking office as our First Felon.
On January 10, Judge Juan Merchan erased any doubt when he imposed a non-sentence on still private citizen Trump. The imposition of sentence, even an Unconditional Discharge sentence, places the indelible Felon imprimatur on Trump.
Oh, he’ll whine, bitch, and moan about the “unfairness” of the judicial process, how he was so poorly treated, and how he was politically prosecuted by an out-of-control District Attorney. He made a last-ditch effort to derail the sentencing claiming something sounding like president-elect immunity. That claim was so absurd that when it got to the Supreme Court even Roberts and Coney-Barrett said, “Hell no” and joined the three sane justices in denying Trump’s claim.
As a sidebar, Justice Sam (“the Sham”) Alito broke no ethics rules when he personally phoned his office a couple of days before the Court would decide to accept or deny Trump’s petition for president-elect immunity. The purpose for the call was to give a favorable reference for a former law clerk vying for a sweet gig with the Defense Department.
Two days later, Alito voted with three other justices to hear Trump’s petition. Some might see a quid pro quo violation to the Court’s ethics rules, but they would be wrong. The Court has no enforceable ethics rules.
Makes me proud to be an American.
So here we are, déjà vu all over again. We are back to a world where people play fast and lose with any sense of standards of conduct. They act with impunity in furtherance of their singular interests, everyone else be damned.
Look, I’m not one who thinks that Trump 2.0 will be a rerun of the original edition. This new Trump iteration has the potential to be far worse than the original, so much worse that it’ll make January 6, 2021, look like Woodstock without the music.
Let’s start with the rule of law. Judge Merchan gets big props for hanging in on the fraudulent business records case. At first blush, the rule of law was respected if not vindicated. A grand jury reported out an indictment; the defendant was afforded all the presumptions of innocence to which he was entitled; his counsel provided him with zealous legal defenses; he was able to file several interlocutory appeals; and a jury heard the evidence and rendered a verdict – guilty on 34 felony counts.
For his sentence, Trump was given an Unconditional Discharge. That was it, no fines, no incarceration, no community service, no probationary requirements. If you listened to the audio of the proceeding, Trump didn’t even get a judicial tongue lashing. He got nothing. Absolutely nothing by way of being held accountable.
The only thing that Merchan’s sentence did was make Trumps 34 felony convictions “official.” That has all the ring of “you may be a winner in the Publisher’s Clearinghouse Sweepstakes.” It’s nice to think you might be a winner but don’t bet the food money on it. Your life will go on, unaltered, as it always has. So will Trump’s.
How awful was this sentence? The New York Times, I know – “legacy media,” researched the sentences issued since 2014 on similar convictions for felony business records fraud. It found that no New York court imposed an Unconditional Discharge sentence. Not one. Zero, zip, nada. You can click the link below to access the story:
Bottom line, the rule of law got punked and the Bad Guy won. I agree that in the practical realities of the matter, Merchan did the only thing he could if he wasn’t going to suspend Trump’s sentencing for four years.
The defense skillfully wound the clock down with appeals designed to bludgeon the court process, and history was made.
There isn’t even a two-tiered justice system anymore. It’s far more multi-tiered than we have been led to believe. We have one justice system for those with few resources, one for those with some resources, one for the wealthy, one for large corporate entities, and now one for a high government official because – you know – democracy.
In Trump v. U.S., the Supreme Court created an immunity doctrine that exempts a president from virtually any criminal prosecution. It seemed to me that when the Court handed down its decision, the majority echoed John Adam’s suggestion that the president be titled “His Highness, the President of the United States of America, and Protector of the Rights of the Same.”
Wisely, the framers shortened the title. However, the sentiment contained therein is alive and well in 21st Century America. Look for Trump to revive Adams’s proposed title or to propose/implement something like it.
Remember when Nixon tried to change the uniforms of the White House secret service detail to look more like the palace guard in Buckingham Palace? Apparently, the Court did.
This new immunity doctrine put a halt to any prosecution of Trump. Initially, he was charged with 91 assorted felonies at both the federal and state levels. There also were assorted civil charges brought privately and by the state Attorney General, all in the State of New York.
This immunity doctrine squashed the two federal cases, the January 6th insurrection case in the District of Columbia and the classified documents case in Florida. (I know it’s “quashed” but these cases were eventually so flattened that “squashed” seemed more descriptive.) However, it’s a tad unfair to give total credit to the Supremes for derailing the Florida case. Aileen Cannon did her absolute best to kill the documents case, dragging it out with ridiculously improper rulings, extended timelines, and her demand for redundant memoranda from counsel.
When the immunity decision came down, there was a bit of handwringing as she contemplated how she could use that decision to Trump’s advantage. Having no doubt given herself a splitting headache, she basically said, “screw it,” and dismissed the case on the grounds that Special Counsel Jack Smith was not properly appointed to his position.
She obviously didn’t care that when this argument was raised in two other circuits it was shot down.
More history was made.
The immunity decision might have affected the Georgia prosecution against Trump had the Fulton County District Attorney not entered a romantic relationship with a subordinate on the prosecution team. Never mind that there was no finding of any impropriety adversely impacting the prosecution of Trump. Bad judgment on the part of the DA, no doubt; any tangible evidence prejudicing Trump, none.
But that didn’t stop the (up for election) trial judge from taking the DA to the legal woodshed, publicly berating her but allowing either her or the subordinate to continue the case, as long as the other resigned. The subordinate resigned but that didn’t deter a Georgia appellate court from subsequently ruling that not just the DA but her entire office were barred from continuing the prosecution of Donald Trump. That decision is on appeal to the Georgia Supreme Court.
Even more history was and will be made.
But I would be remiss if I didn’t give the high Court, with an able assist from Trump’s attorneys, their due credit. These lawyers did a brilliant job taking days, weeks, and months off the calendar.
On October 5, 2023, at the D.C. federal district court, Team Trump argued that because Trump was president when the alleged criminal acts were committed, he was immune from prosecution. Trump asked for and received a stay on all pretrial matters until the immunity question was resolved. Weeks were lost with both sides briefing the question, oral arguments were made, and finally the trial judge made her finding that Trump was not immune from prosecution of the charges alleged by the Special Counsel. It was now December 1, 2023.
Nearly two months were lost to resolving this immunity question.
Trump asked for a stay of proceedings while he appealed to the District of Columbia Federal Circuit Court where again briefs were filed, oral arguments made, and a judgment was rendered upholding the trial court judge’s decision. This process took from December 6, 2023, until February 6, 2024.
Another two months were lost making a total of four lost months.
On February 12, Trump petitioned the Supreme Court seeking “emergency” relief and to place a stay on any pretrial activities. On February 28, the petition for relief was accepted and the stay was ordered. A note on the word “emergency.” An emergency conjures the notion that relief would be expeditiously provided in order to prevent further harm. It would be an error to overwork the word “emergency.”
Maybe the Court confused the word “emergency” with the word “glacial?” Where’s the Court’s former chief wordsmith Antonin Scalia when you need him?
Eight weeks later, on April 25, the Court heard oral arguments on the question of presidential immunity. Finally, after another two months, on July 1, the last case handed down on the last day of the Court’s term gave Donald Trump was given his “Get Out Of Jail Free Card.”
From October 5, 2023, until July 1, 2024, nearly nine months were burnt off the calendar. Even if the Court upheld the trial judge’s decision on immunity, it was a given that another 60 days, if not more, would be consumed at the trial court before jury selection could start. That would then put jury selection out until after Labor Day, and given the defendant’s public persona there was no telling how long that process would take? Let’s be optimistic and say 30 more days.
Yet we know that the Court’s immunity decision forced Special Counsel Smith and his team to withdraw the original indictment, reform the charges to conform with the Court’s decision, present these reformed charges to a new grand jury, with the grand jury reporting a superseding indictment which was filed on August 27, 2024. In other words, back to square one.
Three days after Smith filed the superseding indictment was the start of the Labor Day Weekend. It wouldn’t be until September before activities resumed. And by the time things really ramped up, the election would be over.
Now, in reality, what were the odds even if Trump was found not to be immune from prosecution that a trial would be conducted? My answer – slim and none and slim just left town.
As it turns, all of this was rendered moot when Trump won the presidency a second time.
I wrote a post about this immunity decision on my blog that can be accessed here (for free):
The bottom line, Trump didn’t need good lawyers when he had good judges. And the rule of law needed better stewards in the Federal District Court for the Southern District of Florida and, of course, the Supreme Court of the United States.
Even more history was made.
There were two other history making events that occurred after I started this piece. The first is that Smith’s January 6th Report was released to the public. I have yet to read it, but early reports are there isn’t much “new” in the Report. Jack Smith states unequivocally that based on the evidence there was no doubt that Trump would have been convicted.
Let that sink in. Trump would have been convicted of four felonies. With his prior New York conviction, he would have been found guilty of 38 felonies by the time he takes the Oath of Office on January 20, 2025.
One tidbit reported was that Trump had previously planned to claim victory. Win or lose at the ballot box, Trump was always going to claim victory. That plan was formed months prior to the election.
Upon counting all the votes, Trump and his minions decided to subvert the integrity of the election, sow as much chaos as possible, and hope things broke in his favor so that he could retain the presidency.
The second event to occur was the hearing by the Senate Armed Services Committee to consider the nomination of Peter Hegseth to be Secretary of State. The republicans control the Senate along with all the Senate’s committees, so the outcome of the Committees approval of Hegseth was never in doubt.
The hearing itself was unremarkable. The democrats attacked Hegseth’s complete lack of qualifications, and the republicans ignored his complete lack of qualifications. No surprise here.
But what was more troubling was the lack of a complete FBI background report on Hegseth. And what little the FBI did, per order of Trump, was not distributed to all members of the Committee. To me, this may be the most troubling part of the process.
This is what we’ll all experience over the next four years if Trump and his MAGA minions have their way.
David Rohdes in his book, Where Tyranny Begins: The Justice Department, The F.B.I., And The War of Democracy, recounts the F.B.I.’s reluctance, if not resistance, to investigate those suspected of fomenting and inciting the January 6th insurrection.
Rohdes found that the reluctance to aggressively investigate areas requested by D.O.J. lawyers was not because assistant directors and supervisors were Trump supporters, but because they feared a continuation that the battering of the F.B.I. delivered by Trump during his presidency would continue unabated in his post presidency.
This was bureaucratic PTSD. Now that Trump is back, badder than ever, it’s fair to wonder how co-opted the F.B.I. might become in a second Trump term?
That’s anyone’s guess but worth keeping an eye on as a new chapter of history is made.
Often when we hear “history making,” we associate those words with positive events: the eradication of disease, labor saving devices, diplomatic breakthroughs leading to peace. But history is also associated with negative events: wars, the spread of deadly diseases, the collapse of otherwise stable democracies.
Man is a maker of history by his actions or inactions. We have a choice, history is not preordained.
Make no mistake, we can and will make history, we just have to decide what history we want to make.
And it’s not just me saying this…
The choice is ours…
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