Election legal fights loom with Trump cases still stuck in court

WASHINGTON — Lingering court fights over efforts by Donald Trump to overturn the 2020 election results leave unanswered questions over how the U.S. justice system would navigate similar turmoil after November’s presidential contest.

Legal experts are warning that the lack of finality leaves room for attacks on legitimate vote tallies with the potential to sow discord and spur violence. Courts overwhelmingly rejected challenges to President Joe Biden’s win, but as the U.S. barrels toward another hotly contested race, many cases remain unsettled about whether Trump and his allies should face legal consequences for their conduct.

“What’s really a shame here is that had the trials been conducted on this matter already, then going into this election, there would be much greater clarity about the way our electoral system works and what’s legal and what’s not,” said Claire Finkelstein, a professor at the University of Pennsylvania Carey Law School and founder of the Center for Ethics and the Rule of Law.

In the federal election obstruction case against Trump, the next phase of the fight over his immunity from charges just kicked off this month after the U.S. Supreme Court held he is at least partially shielded. It could be months before the issue is wrapped up. If the indictment survives, a trial would be even further out.

Constitutional fights, surprise controversies and the slow grind of the legal system have left other cases unsettled:

—A state criminal case in Georgia against Trump, advisers who promoted false voter fraud claims, and pro-Trump electors who signed a false certification has been mired in controversy.

—Nevada’s attorney general is appealing the dismissal of charges against electors.

—Other criminal cases in Arizona, Michigan and Wisconsin related to the false certifications were filed over the past year.

—Civil suits against Trump over the Jan. 6 attack on the U.S. Capitol have been tied up in a parallel immunity fight.

—A November 2020 lawsuit accusing Trump and the Republican National Committee of trying to disenfranchise Black voters also was paused during the immunity fight.

Trump and other defendants have protested that these cases are politically motivated and legally unsound. If Trump wins in November, he’s expected to direct the Justice Department to shut down the federal obstruction case.

The 2020 election cases continue to play out as the Republican and Democratic parties are already litigating over how Americans vote in November and preparing for the possibility of post-election contests.

Rebecca Green, co-director of the Election Law Program at William & Mary Law School, said bipartisan action by Congress to clarify the electoral certification process after 2020 did “a lot to stave off mischief” this time.

Still, she said, the backward-looking litigation represents “important work to do in terms of establishing and supporting norms in our democratic system.”

The hundreds of prosecutions against Trump supporters who joined the Jan. 6 attack offered clarity on how courts would apply the law – and the punishments they would hand down – in the future. The targets of right-wing conspiracy theories secured high-dollar outcomes in defamation cases. Lawyers who backed Trump’s efforts have had their law licenses suspended or revoked.

Even if the legal fights aren’t over, they’ve still played an important role in revealing details about what happened in 2020, said Mary McCord, a former senior Justice Department official and executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. The center was involved in a civil case in Wisconsin against pro-Trump lawyers and electors that settled.

Justin Levitt, a professor at Loyola Law School and former DOJ official, said it is “abundantly clear” that U.S. law doesn’t allow someone to pretend a candidate won when the evidence showed otherwise. But court judgments provide closure, he said.

“If you don’t get prosecuted for shoplifting, it’s not that that makes you think that it’s legal, it’s that you think you might be able to get away with it again,” Levitt said.