Donald Trump said he could murder someone on Fifth Avenue, and they would vote for him anyway. He didn’t, but they likely would have.

He told a court probation officer that he believed himself above the law. The Supreme Court agreed he was, and 77 million people voted for him anyway.

He unleashed hoodlums on our Capitol to disrupt the certification of votes because he didn’t like the outcome. They voted for him anyway.

Informed that the mob had erected gallows from which they would hang the vice president, his response was, “So what?!” They voted for him anyway.

Impeached twice, he was acquitted twice by the U.S. Senate, but in the end, the Senate leader of his party said it was for the criminal authorities to prosecute him. They tried and failed.

Despite a gag order, he defended himself by trashing judges, prosecutors, court officials, and their families. In so doing, he seriously undermined the justice system and the rule of law. They voted for him anyway.

The 78-year-old nabob called lawful proceedings “corrupt,” “rigged,” a “witch hunt,” and a “sham” over and over again. Special Counsel Jack Smith was “deranged” and “lamebrained.” Black prosecutors such as New York County District Attorney Alvin Bragg and New York Attorney General Letitia James were “racists.” And all were handmaidens of his political opponent, Joe Biden, the “worst president in history.’ They should have known it was all just trash talk. They voted for him anyway.

In 2020, he demanded that Georgia’s secretary of state, a Republican, “find” him the necessary votes to win the state. The case might have been his undoing, except the proceeding was sidetracked because the prosecutor had an affair with her chief assistant. No matter. They voted for him anyway.

He incontestably mishandled classified documents and, in the words of Representative Jasmine Crockett, the Texas Democrat, he stored “our national secrets” in “the shitter” on his Mar-a-Lago estate, and the evidence was overwhelming. Still, an overly Trump-friendly judge dismissed the case. They voted for him just the same.

Trump is the “artful Dodger” in Charles Dickens’s Oliver Twist—charismatic and confident, with a knack for evading the law. He was also a legal Harry Houdini, an escape artist emerging from a sealed water-filled tank. And all because voters gave him a healing benediction.

Trump’s mentor, Roy Cohn, succeeded in winning acquittals on three indictments, but each one was after trial. Like Cohn, Trump chose not to take the witness stand But, unlike Cohn, Trump defended himself behind a barricade in the courtroom corridor.

Trump avoided trial on three of his four indictments with motions and appeals until the clock ran out. As we say in the trade, “no trial, no conviction.”

When he was tried and convicted by a jury on 34 felony counts, the result was a judgment of conviction carrying no penalty, not even a fine, because he’d been elected, once more, as President of the United States.

Part of Trump’s success in court is attributable to prosecutorial or congressional incompetence and corruption, reminding us of Justice Benjamin Cardozo’s taunting l question, “Shall the guilty go free because the constable has blundered?”

Prosecuting Trump over the January 6 insurrection or the Mar-a-Lago documents were giant clams compared to a mere hush money payoff to a porn star in the runup to an election. (This week, the Justice Department said it was no longer pursuing Trump’s codefendants in the documents case.) But the wheels of justice creaked so slowly that he could get off because they voted for him.

Hamlet long ago decried “the law’s delay.” Unfortunately, Attorney General Merrick Garland proved as dithering as Shakespeare’s prince of Denmark, a man of action delayed by thought. He testified at his confirmation hearing that he would “begin with the people on the ground.”

Garland delayed appointing Jack Smith as special counsel. On November 15, 2022, in an op-ed in the New York Daily News, I called on Garland to indict Trump over January 6. The evidence was there. Garland passed the buck to Smith three days later. And Smith didn’t get around to indicting Trump until August 1, 2023.

There is blame to go around. Republican leader Mitch McConnell, while stating that Trump was “morally and legally” responsible for the January 6 insurrection, refused to convict Trump in the impeachment proceeding arising out of the riot and left criminal accountability to the Justice Department. Had Trump been convicted in the Senate, he would have been constitutionally disqualified from holding office.

It may be hard to follow, much less understand, the convoluted proceedings surrounding the prosecutions of Trump involving four indictments on 91 felony counts (two state and two federal), the myriad motions, and the appeals to the Supreme Court. But people ask me, as a former federal prosecutor, how this could happen in a country dedicated to the rule of law and the proposition that no one is above the law. Well, it did, and here’s how it all went down.

The January 6 insurrection and presidential immunity. Smith indicted Trump in the District of Columbia on August 1, 2023, on the events of January 6, 2021. The indictment included four charges: conspiracy to defraud the United States, obstructing an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against rights. The Court set a trial date of March 4, 2024, well before the November 2024 election. As a panel of the D.C. Circuit put it: “In this case, the general election is almost a year away and will long postdate the trial in this case.”

Trump moved to dismiss the case on grounds of a blanket presidential immunity. He claimed that everything he did in office was immune from criminal prosecution.

District Judge Tanya S. Chutkan promptly denied Trump’s motion in a 48-page opinion that law professors have described as “bulletproof,” “meticulously crafted with the Supreme Court in mind.” A president has never been granted immunity from criminal prosecution for everything he does in office. If that had been the case, Gerald Ford would have found no need to pardon Richard Nixon.

Trump appealed Chutkan’s decision to the D.C. Circuit. Usually, pre-trial motions in a federal case are not appealable before final judgment. But denying an immunity motion is immediately appealable.

On oral argument, Circuit Judge Florence Pan famously asked Trump’s lawyer, D. John Sauer, “whether a president could order SEAL Team Six to assassinate a political rival and still be immune from prosecution.” Sauer, whom Trump will soon nominate as Solicitor General, responded that he would unless first impeached and convicted—an astounding response at odds with jurisprudence going back to 1789.

Appeals take time. By simply filing a paper in court called a notice of appeal, the lower court loses its jurisdiction as to all matters involved in the appeal. So, the trial date was automatically stayed until the appellate court acts. Stay rhymes with delay.

Then, there was the petition for certiorari to the United States Supreme Court, which may not be decided before the end of the Court’s term on June 30, 2024. So Smith, finally realizing that he was in a jam for time, threw a “Hail Mary” pass asking the Supreme Court to consider a petition for cert in advance of judgment, a procedure leapfrogging the D.C. Circuit that has been rarely used—49 times since 1925 and 19 times in the past five years. It was used notably regarding Nixon’s White House tapes. Quite remarkably, and for whatever reason, Smith’s petition did not say anything about the elephant in the room—the 2024 election staring him in the face, which could render any trial moot.

If granted, the petition would save months of wheel-spinning in the intermediate appellate court. Granting the petition would take four votes. Justices Clarence Thomas and Samuel Alito (who failed to recuse themselves) would deny the petition, doubtless because they deemed Trump a victim of political persecution. The four other conservatives (Chief Justice John Roberts, Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh), proving beyond cavil that they were in the tank for Trump, voted to deny. The Court had gone MAGA. There is one law for Trump and one for everyone else.

Roberts had stressed, quite aptly, that when the Court becomes supremely partisan, it undermines public acceptance of its decisions.

After piously declaring that the president is not above the law, Chief Justice Roberts created a presumption that what the president does is the law for all official acts.

The Court’s decision was at odds with the Constitution and the founding documents. The framers knew how to grant immunity to public officials if they wanted to. King George III had immunity. He could do no wrong. They gave members of Congress limited immunity for their “Speech and Debate.” At the time, governors in some states had immunity under their citations. They chose not to extend such immunity to the president.

The Constitution clarifies that if the president commits a crime, he can be impeached, removed from office, and then prosecuted criminally. Until Trump, no president had been brought to trial for a federal crime.

The majority held that the president, even after he leaves office, is immune from criminal prosecution for “core” conduct within his “conclusive and preclusive constitutional authority” and presumptively immune from “official acts,” even though the words “presidential immunity,” “official acts,” “presumption” and “core constitutional authority” are nowhere to be found in the Constitution.

The Court did say that the prosecution could rebut the presumption of immunity for “official acts” in a pre-trial hearing, with the result subject to appeal before the trial starts, an obstacle course for the prosecutor that made criminal liability virtually unachievable.

According to Roberts, all of a president’s official acts, defined without regard to motive or intent, are entitled to an immunity that is at least “presumptive” and quite possibly “absolute.” So, if a president receives a bribe to appoint a pal ambassador to Jamaica—or the president orchestrates a coup from the Oval—the majority says the criminal law (at least presumptively) cannot touch him.

What the justices in the minority overlooked is that presidential motive can be relevant, and criminal acts can never be official. Motive and intent are always appropriate in a criminal case. George Washington didn’t need immunity—only rogue presidents like Trump.

The Florida Debacle. Smith appeared to have misgivings from the start about the classified documents case. He dithered over the irrelevant fact that Trump did not steal classified documents to sell them, show them to others, or even give them away. According to a leaked report, Trump’s motive was innocent: ego or to keep trophies and souvenirs of his time in office. Of course, if a thief steals a moose head mounted on your wall, it makes no difference what the motive is. A different standard should not apply to Trump.

Then, there is obstruction of justice over the failure to deliver the Mar-a-Lago documents called for by the grand jury subpoena. Of all the things Trump was being investigated for around the country, obstruction of justice was the slam dunk.

The New York Times reported the damning evidence that a security camera caught a long-serving Trump staffer moving boxes after the subpoena demanding the return of classified documents. The Washington Post piled on with the statement that a Trump employee told investigators that documents were moved at Trump’s explicit direction post-subpoena.

There is the unwritten Justice Department policy of not filing an indictment within 60 days of an election. There was consideration for the December 6 runoff election in Georgia. But there was an urgency in bringing the case, and Smith had to select the appropriate venue.

Ask any former prosecutor. Smith’s catastrophic mistake was to bring the purloined documents case against Donald Trump in the Southern District of Florida instead of the District of Columbia. The jury pool in Florida would be favorable to Trump. In 2020, Trump won Florida with 51.2 percent of the vote. In the District of Columbia, he won 5.4 percent. Nevertheless, Smith waited until June 8, 2023.

 To indict Trump in Florida over the mishandling of classified documents.

Judge Aileen Cannon of the Southern District of Florida was an admixture of bias and incompetence. The 43-year-old Trump appointee had never handled a case involving the nuances of classified documents or other high-profile showdowns. The appellate court twice rebuked her for erroneous decisions in Trump’s challenges to the Mar-a-Lago search warrant. She was eager to play into Trump’s delay strategy.

Justice Antonin Scalia once told me, “Federal district judges have an awful lot of power.” They can issue non-appealable interlocutory orders that determine the fate of cases or make them disappear. They are masters of cleaning up their dockets that way.

Smith must have thought he had good odds of avoiding the dreaded Judge Cannon when he opted for Florida. She sits in Fort Pierce. He filed the indictment in Miami, where the grand jury sat. The Southern District of Florida is administratively divided into five divisions: Miami, Fort Lauderdale, West Palm Beach, Fort Pierce, and Key West. Smith overlooked that Miami and Fort Lauderdale judges are not in the pool for Palm Beach cases. Fort Pierce, where the crime did not occur, is 68 miles north of Palm Beach, where some of the crimes did occur, and 128 miles north of Miami. There were 26 judges in the Southern District of Florida to whom the case might have been assigned. Smith’s odds were one in three of getting Cannon because of the peculiarity of local rules, which lumped Fort Pierce and Palm Beach together. Smith needed to draw a straight inside. He pulled the death card.

The documents case was a slam dunk. After he ceased to be president, Trump took classified documents from the White House, carted them to his Mar-a-Lago estate, and refused to return them when asked. He then moved the documents around the mansion to avoid federal officers sent by the Department of Justice to retrieve them. Eventually, the feds raided Mar-a-Lago.

The judges in D.C. are highly skilled in classified documents cases, and they know how to weigh and sift the competing issues of national security and the defendant’s due process rights. Most judges in Florida have never handled a classified documents case. For sure, Cannon never handled one.

Yes, D.C. had drawbacks as a venue, too. Trump would have moved to dismiss in D.C. because his team would argue that the case had to be brought to Florida, where the center of gravity of the alleged crime occurred. They might have argued that if all the documents had been taken to Florida while Trump was president, there would have been no D.C. crime. But Smith could have pushed past that. The mishandling began in the capital, too, and his intent to keep them was formed there. Moreover, Trump’s flouted requests were from the National Archives in Washington. Trump would also have argued that he couldn’t get a fair hearing in D.C., but the D.C. court had already ruled that the January 6 cases could be tried in D.C. with no problem selecting a fair and impartial jury.

Choosing a venue is always an important question. If you murder in New York, the prosecutor couldn’t move the case to Texas. For instance, while, hypothetically, it might have been possible for Smith to bring the case in New Jersey, where some classified documents seem to have made their way during a layover at Trump’s Bedminster golf club, that would have been a stretch.

D.C. was worth trying to secure. But I suspect Smith didn’t want to look like he was forum shopping and deliberately avoiding a red state. But so, what? He would be accused of political bias no matter what he did. Smith might have naively figured the documents case wa

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