Portrait | The tangled web of the People v. Donald Trump

THE chaotic picture one sometimes gets on television or in movies of the US legal system and courts is not entirely wrong. This is probably inevitable in a federal setup where the law often differs from one state to the next, or where it sometimes takes months or years to decide who gets to rule on a case. The appointment of public prosecutors and judges is just as messy; some are elected, others are appointed by the president and theoretically have jobs for life, with consequences that can be felt for decades.

But it's also not true that every third American court case is about some ridiculous compensation claim, or that lawyers spend most of their time shouting “Objection, your honour!" every time the other side says something.

The US is a constitutional state, which means everything is subject to the rule of law rather than the whims of the government of the day, a church, a monarchy, a greedy company or a real-estate shyster from New York.

Supreme to all these laws is the US constitution, the underlying set of rules against which all others must be tested. The US has the oldest surviving written constitution but today it is a very different document from the one that came into effect in 1789. More than two centuries ago, ideas that were considered constitutional included people being able to own other people as their property and some people having fewer rights than others.

As much as the US constitution has often perpetuated injustices over the centuries or has been abused, circumvented or selectively interpreted to suit powerful people, a deeply rooted respect has remained for the document that starts with the famous words “We the People…" (For now, anyway.)

This process of adaptation and progression was done through a series of formal amendments by Congress, but also through successive judgments by the US's highest legal authority, the Supreme Court.

The two are not always neatly in tune with each other or with the wishes of the American people, whatever they may have been over time. For example, in 1857, Chief Justice Roger B Taney in Dred Scott v. Sandford ruled that people of African descent were to be considered property and therefore were not “citizens" with rights. Four years later, this divide led to the American Civil War. At the end of that war, the 13th Amendment was the first of a series of changes to the constitution through which slavery was abolished and the exclusion of citizenship and voting rights based on race or colour prohibited. Despite this, almost a century passed before the Supreme Court declared segregated schools unconstitutional in 1954's Brown v. Board of Education ruling.

This pushing and pulling between the constitution, the apex court and public opinion is still continuing. For example, in 1864 — almost half a century before Arizona became a US state in 1912 — it passed legislation that banned abortion with almost no exceptions. The US constitution has never explicitly referred to abortion, which meant legislation about it was left up to the states. But in 1973, the Supreme Court in Roe v. Wade ruled that a woman's right to an abortion was protected by the constitution in terms of 1866's 14th Amendment.

This constitutional protection meant legislation like Arizona's 1864 law no longer had legal standing but it was never removed from the statutes. So in 2022, when the Supreme Court repealed its own prior ruling in Roe v. Wade (basically on the grounds that it had exceeded its powers), the jurisdiction over abortion shifted back to the states, which meant archaic legislation like Arizona's from 160 years ago was suddenly valid again, in theory at least.

This brings us to the rather banal example of Donald Trump, who  appointed no fewer than three of the Supreme Court's nine members in his four years in office. Without these three conservative justices (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), the Supreme Court might well not have overturned Roe v. Wade.

While Trump claimed the repeal as a victory then, it has come back to haunt him. He clearly miscalculated how much popular support there is among Republicans for more realistic abortion legislation, and even his most fanatical supporters might not forgive him a U-turn. It also makes a farce of Trump's argument that the various prosecutions against him are all part of a political plot to keep him out of the White House; American politics and the courts have never been completely separated, and he helped keep it that way.

In the Stormy Daniels case, Trump finds himself at the bottom rung of the US criminal justice system, although it is no less serious than other cases against him. He is not being prosecuted at the federal level but under New York state law. Similar legislation does not necessarily exist in other states because New York is home to so many large corporations that require appropriate laws.

At the same time, Trump is  embroiled in legal battles elsewhere in the system. The US court system deals separately with federal (national) and state issues, while the Supreme Court straddles both and has a few other specific responsibilities as well. (Watch this video for an explanation.)

♦ Federal courts have jurisdiction over cases involving violations of federal law or the constitution. These are “federal issues".

♦ At the lowest federal level there are US District Courts, where the initial trial takes place. This is where facts are established and legal principles are applied. There are 94, including at least one in every state as well as in the District of Columbia (DC) and Puerto Rico. Three US territories also have District Courts: the US Virgin Islands, Guam and the Northern Mariana Islands.

♦ One federal level up there are US Courts of Appeal, of which there are 13. They review whether the law was applied correctly in the preceding trials. Courts of Appeal consist of three judges and do not use a jury. They hear appeals against District Court decisions, as well as from federal administrative institutions.

♦ On the state side, there are the State Trial Courts, which deal with cases where state legislation is involved. The Stormy Daniels case is taking place in Manhattan in the New York State Trial Court, with a jury and under Judge Juan Merchan.

Two things make this rather confusing:

* First, the court session takes place in the building of the New York County Supreme Court, which means  the name “New York" is referenced at three levels: In New York County, New York City and New York State.  However, it remains a state trial.

* Second, the case against Trump is led by New York County's District Attorney, Alvin Bragg. He is a lawyer who became the first African-American to be elected to this position in 2021, under the banner of the Democratic Party. As in most states, New York State's District Attorney is elected by residents at the ballot box. 

Next complication: While the state trial in Manhattan against Trump is already under way, the Supreme Court yesterday began hearing arguments that as a former president he should have immunity from prosecution in special counsel Jack Smith's election interference case against him.

Trump asked for leave to attend the Supreme Court hearing in Washington, DC rather than his criminal trial in New York, but Judge Merchan turned his lawyer down: “Arguing before the Supreme Court is a big deal and I can certainly appreciate why your client would want to be there, but a trial in New York Supreme Court… is also a big deal."

Further complication: If the Supreme Court finds that Trump does indeed have immunity from prosecution, it may or may not also mean the New York case against him falls away.

♦ If the New York case continues, one level above the State Trial Court await the Intermediate Appellate Courts, and after that the State Supreme Courts.

♦ At the top is again the highest US legal authority, the Supreme Court, to which the federal and state courts are subordinate. (The Supreme Court also functions as a court of first instance in specific cases, such as disputes between states. A few specialised courts also sit directly under the Supreme Court, including tax and patent courts.)

All of this means Trump may very well end up in the Supreme Court via the New York case as well, and the same is true of the other court cases against him.

No wonder his money for legal costs is running out so fast.

♦ VWB ♦

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