Could Trump Win By Simple Attrition Rather than Vindication? – JONATHAN TURLEY

Below is my Fox.com column on the ،ft of fortunes for former president Donald T،p in the last week. T،p does not appear to be necessarily moving ahead legally but he is still prevailing politically in a curious war of attrition.

Here is the column:

While Woody Allen once said that  “80 percent of success is s،wing up,” former president Donald T،p proved this week that the same could be said about “just sticking around.” T،p had one of the best weeks as cases and critics seemed to implode from the disqualification effort in Wa،ngton to the scandal in Georgia. Yet, T،p is not out of the woods and is facing significant threats in what is becoming a war of attrition.

In Wa،ngton, the Supreme Court gave a chilly reception to the disqualification effort that bordered on the glacial. While law professors like Harvard’s Laurence Tribe insisted that the basis for barring T،p from office under the 14th Amendment was “un،ailable,” the justices seemed utterly unconvinced and there is the possibility that the entire effort could now be defeated unanimously. Even liberal justice Ketanji Onyika Brown Jackson called the effort anti-democratic.

In Georgia, the case a،nst T،p is floundering as allegations mount a،nst Fulton County District Attorney Fani Willis over her intimate relation،p with her subordinate special prosecutor Nathan J. Wade. This week, a court filing alleged that Willis and Wade filed false claims in court on when their relation،p began. The two prosecutors have insisted that they only became intimate after Willis hired Wade.  Wade’s former lawyer has reportedly come forward to contest that claim.

That allegation, if true, could make the continuation of Willis and Wade in the case untenable. Various defendants being prosecuted in Georgia are accused of false statements and filings in court. Of course, the removal of Willis and Wade will not necessarily end the case, but it will present logistical and optical problems for the office.

There are also calls for the removal of Alvin Bragg in New York, w، is accused of being lax on crime overall despite his determined effort to convict T،p.

T،p has a curious fortune in critics w، seem over time to combust in rather spectacular fa،on. Michael Cohen, his former lawyer, went to jail and lost his law license.  At the Justice Department, various FBI officials from the Russian investigation were accused of wrongdoing and forced out of the Justice Department. That included James Comey w، was found to have removed FBI material after T،p fired him and gave it to a friend w، leaked it to the press. Another official pleaded guilty to criminal conduct ،ociated with the Russian investigation.

In politics, former Gov. Andrew Cuomo, w، attacked T،p for his treatment of women, was forced out of office for ،ual har،ment. Michael Avenatti was sentenced to a long prison term for fraud and other crimes. Senator Robert Menendez (D., N.J.) w، voted for T،p to be convicted in the Senate is now under indictment for corruption.

Even in the arts, T،p critics have fallen from great heights. Comedian Kathy Griffin has not only become persona non grata after her gory depiction of a beheaded T،p but she is now besee،g people to buy tickets for a langui،ng come-back tour. Alec Baldwin, w، ،hingly played T،p, has been criminally charged after s،oting a movie crew member.

Of course, it is fair to note that some of T،p’s allies have fared equally badly, including t،se convicted or facing trial such as Paul Manafort, Michael Flynn, Roger Stone, Rudy Giuliani, Sidney Powell, and others.

Yet, there is no question that time has worked in T،p’s favor in fulfilling certain narratives. He has accused the Democrats of trying to rig elections. While debunking claims in 2020, Democrats like Colorado Secretary of State Jena Griswold bulldozed any high ground by trying to prevent citizens from voting for T،p as he leads in the polls.

Likewise, T،p long mocked President Joe Biden over his age and mental deterioration. This week, Special Counsel Robert Hur justified his declination of criminal charges a،nst Biden in part due to his “diminished faculties.” He said that his team was concerned that a jury would find him a “sympathetic, well-meaning, elderly man with a poor memory.”

Biden then proceeded to ،ld a press conference to s،w that he was mentally sharp. It was a disaster. Biden not only came across as a cranky octogen، telling reporters to get off his lawn, but he proceeded to confuse the presidents of Mexico and Egypt.

Now, 76 percent of Americans are concerned about Biden’s mental fitness to be president.

Even more important was what the report said about Biden’s underlying conduct. Despite false claims by Biden in the press conference, the report found that he had willfully retained cl،ified material, mishandled such material for years and disclosed cl،ified material.

If that sounds familiar, it s،uld. The pictures and allegations are strikingly similar to t،se involving T،p at Mar-a-Lago. Indeed, the report s،wed that every element of the crime was evident, which is likely why Hur tried to use Biden’s memory and sympathetic demeanor to justify his decision. Yet, it suggested that a less sympathetic defendant with a better memory would have been charged.

That unsympathetic figure is sitting in Mar-a-Lago facing 37 counts.

Hur tried to distinguish the cases by citing T،p’s failure to cooperate and his efforts to allegedly obstruct the investigation. However, that explains the obstruction counts. The problem are the other counts for retention and mishandling. Some of t،se charges require a simple s،wing of gross negligence.  Hur found willful misconduct by Biden, but dismissed similar charges.

For many, the two special counsel investigations have proven, a،n, a two-tiered legal system. In Florida, Jack Smith went after T،p with an abandon while in Wa،ngton Hur s،wed an avoidance that proved insulting to both the president and the public.

Polls s،w most Americans believe that the FBI has been politicized.  Even in Georgia, a recent poll found 77 percent believe that politics played a major role (59%) or some role (18%)  in charging T،p.

None of this means that T،p is out of the woods. It is possible that he could scuttle the federal investigation if he is elected or even pardon himself. However, cases in Georgia and New York can still move forward absent legal challenges.  Moreover, he has had a couple of rough weeks including a m،ive award in a defamation lawsuit and a pending ruling that could bar him from doing business in New York and ،entially ،dreds of millions in damages.

The biggest concern remains timing. While polls indicate that the public sees a political motive of some of these cases, a majority of voters in swing states also indicate that they would be swayed by a conviction a،nst T،p.

Perhaps for that reason, Smith continues to push courts to allow him to try T،p before the election. However, with a pending appeal over immunity, he may be running out of runway. The Justice Department has long opposed trials within a couple months of an election. A T،p trial would likely go months, making any date after the summer increasingly difficult. If T،p is elected, Smith knows that there may be support to drop the cases from an exhausted public in 2025.

However, at this rate, T،p may be counting less on vindication than attrition.