Trump’s Three Trials
The former president faces multiple criminal prosecutions.
POLITICO Congressional reporter Kyle Cheney contends, “Trump’s defeat in Carroll case presages more legal peril.”
A federal jury’s finding that Donald Trump sexually abused E. Jean Carroll in the mid 1990s is a historic rebuke of a former president and frontrunner for the 2024 GOP nomination. But it’s also a prologue.
Legal threats in Washington, Manhattan and Atlanta — both criminal and civil — are crystallizing in ways Trump has skirted for his entire political life. And the story of his bid to regain the presidency is likely to be defined by his attempts to stave off criminal liability for things he did the last time he occupied the White House.
He breaks the cases down one by one, in the order of potential action.
Fulton County District Attorney Fani Willis is investigating efforts by Trump and his allies to overturn the results of the 2020 election in Georgia, a state that President Joe Biden won narrowly. Willis recently told local law enforcement to prepare for potential indictments between July 11 and Sept. 1.
Willis’ charging decisions are rooted in the work of a special grand jury she convened to determine whether Trump violated state election laws in his bid to remain in power. That special grand jury probed Trump’s effort to reverse the outcome in Georgia, as well as his broader effort to subvert the election in Washington. The panel focused specifically on Trump’s effort to press state election officials to “find” just enough votes to put him over the top in the state.
The special grand jury — a quirk of Georgia criminal law — has no power to indict but made recommendations about potential prosecutions earlier this year. Willis is not bound to follow those recommendations but said in January that charging decisions were “imminent.” She must now present the evidence gathered by the special grand jury — as well as additional information she’s been gathering in subsequent months — to a traditional grand jury that can issue charges.
As with the Manhattan case, an indictment by a Democratic elected official in a very blue city will be easily spun as a political witch hunt. Trump was almost certainly reckless enough in his strong-arming for Willis to make a case against him. But the optics aren’t great.
Manhattan District attorney Alvin Bragg made history when he obtained the first ever criminal indictment of a former president, charging Trump with dozens of felony counts for allegedly cooking his company’s books to secure the silence of a porn star who accused him of an affair.
The judge overseeing the case recently asked lawyers for both sides to agree on a trial date in February or March 2024. In the meantime, expect a long series of pre-trial motions and bids by Trump to dismiss, delay or relocate the proceedings to another district or to federal court. The next major milestone is Aug. 8, when Trump is due to file expected motions to challenge the indictment.
We’ve discussed this one at length. While I’m quite sure Trump committed multiple crimes, legal analysts overwhelmingly think the particular charge here is a stretch.
The one we’ve all been waiting for is this one:
Special counsel Jack Smith has been on a tear. In recent weeks, he’s hauled in former Vice President Mike Pence to testify to a grand jury, as well as former top aides in the Trump White House — from social media adviser Dan Scavino to policy adviser Stephen Miller to personnel chief Johnny McEntee. Former chief of staff Mark Meadows is expected to appear before the grand jury imminently as well.
These interviews followed a series of intense, secretive legal battles in which Trump fought to stave off their testimony by asserting executive privilege. And in each case, he lost swiftly in both the district court and the court of appeals — setting new precedents for the separation of powers along the way.
The witnesses were key players in the final weeks of Trump’s administration, as he worked desperately to seize a second term despite losing the 2020 election to Biden. When his efforts failed, a mob of his supporters — assembled in Washington on Jan. 6, 2021 at Trump’s call — bashed their way into the Capitol and sent Pence and lawmakers fleeing for their lives.
Of all the investigations Trump faces, the timeline here remains murkiest. Smith is still working to prevail in a long-running legal battle to access the communications of Rep. Scott Perry (R-Pa.), whose phone was seized by the FBI last August. Several other sealed legal fights, which are still unresolved, could unlock additional troves of evidence for Smith and his team of prosecutors — each of which could prolong the investigation by identifying new leads.
Unless something happens relatively quickly—which seems doubtful—Attorney General Garland is going to be loath to indict and be seen as interfering in the 2024 election.
There’s also this:
Smith’s work isn’t limited to Jan. 6. He’s also probing Trump’s handling of scores of classified documents found at his Mar-a-Lago estate more than a year after Trump left office. This probe appears significantly more advanced than the Jan. 6 probe, in part because it involves a smaller universe of potential witnesses, many of whom have already appeared before Smith’s grand jury.
One of those recent appearances came from one of Trump’s own lawyers, Evan Corcoran, who was forced by the courts to testify despite Trump’s effort to assert attorney-client privilege. Observers both inside and outside Trump’s orbit have viewed this investigation as closer to completion than the Jan. 6 probe.
While the chants of “Lock him up!” and ironic parallels with “But her emails!” are amusing, I would be shocked if anything came of that one.
Wait – are you saying you don’t think anything will come of the documents case?
I think that is a cut-and-dried case of obstruction and is one of the likeliest cases.
I guess we will see.
Trump’s political problem with these cases is that he won’t be able to shut up about them. Biden is going to be talking about 2024 and Trump is going to be rambling backwards into Fauci-territory. Biden is almost certainly too old to be running for President in a normal country. Democrat partisans do not want to see that, I think. But Trump will do his best to drag his campaign into some vortex where Biden is barely present.
Also, there’s no non-normal way Trump dodges getting nailed for the documents.
Here’s a depressing coda to Prof. Joyner’s piece:
There’s no reason for Smith to conflate Jan 6 with the documents investigation. If they are ready to indict on one, they shouldn’t wait for the other. It seems that the special counsel is further along in the Jan 6 investigation than the Docs.
@daryl and his brother darryl: I think DOJ will bend over backward to preserve a President’s plenary power over the nation’s secrets. There’s no way to prove Trump didn’t declassify the documents in question before taking them home. So, what we’re left with is violations of the Presidential Records Act and whatever crimes are implicated by refusal to turn over the docs once demanded. I’m just not sure the juice is worth the squeeze.
The me, the real prize is the January 6 crimes. I think the evidence of Trump’s direct involvement is pretty well gathered at this point. It’s more a political decision than a legal one at this point.
Fairly certain that you can prove he didn’t declassify the documents. Declassification is not a mentalist trick. Furthermore, he claimed he did not have the documents he supposedly did not need to be hiding. Who is going to bend over backwards for an obvious liar who was not even president when this happened?
The indictment should be filed when it comes, and the trial should be held as early as possible, even if it interferes with the 2024 election.
Benito the sexual predator won’t be in a position to effect a coup in 2024. But his supporters and minions in several state governments, legislatures, etc. sure are. If indictment and trial are delayed, they will be emboldened to aid in stealing the election. If El Cheeto is indicted and on trial, however, then they will be mindful, and scared out of what remains of their wits, of the consequences.
Garland might be forced to tiptoe around the sexual predator, and to make sure he crosses all t’s and checks all the boxes neatly with a No. 2 pencil. But George Santos was detained and indicted without so much fuss, and the same would go for election officials, state legislators, even secretaries of state and governors. But not if the process waits for the results of 2024.
I call bullshit on this, James. You’re buying the Trump framing that this is partisan. He broke the law in a marginally Blue state. So? Are Republicans now only liable in states they control? Under judges they appointed? Will the MAGAts howl? Of course. Who cares?
This asshole tried to steal an election. He should be charged, tried, and when found guilty, imprisoned for a period of years.
@James Joyner: It’s not going to be mainly about the documents, it will focus on the obstruction. That one looks much, much better and is one prosecutors aren’t going to want to let go because it implicates how they investigate.
I think you are flat wrong on this, FWIW.
Edited to add: The other reason to focus on the obstruction rather than the classified nature of the documents is that it avoids the whole whataboutism with Pence, Biden et al. They may have had classified docs but when the issue was raised they both immediately turned them over and helped the Feds look for more.
@Michael Reynolds: I don’t think the Atlanta case is partisan; I’m a bit more skeptical about the Manhattan case. I just think an elected Democratic prosecutor going after Trump is going to be easy to sell as politically motivated regardless.
Sure there is. Declassifying is a process. Trump can’t just wave his hands over them and blink twice.
As for the juice from the squeeze…like I said, we will see.
In fact, if not in law, not indicting is interfering just as much as indicting. And is that not Smith’s decision?
In my opinion, the documents case is going to go much worse for Trump himself than the Jan 6 case.
For starters, there are relevant statutes that don’t reference classification status at all, they reference (I’m not quoting) whether the material has substantive national security value. So it doesn’t matter whether he did a mentalism trick, even if that wouldn’t work anyway. You don’t even have to engage that argument.
AND, he (well, at this point his lawyers) lied about what he had, lied when they said they had turned everything over. The investigation has managed now to break the attorney-client privilege to force those lawyers to testify before the GJ. What’s more, it now looks as though there is evidence (an insider testimony and maybe security tapes) that material was removed on certain days and shown to guests. They are now trying to figure out which guests.
It could still be a case of Trump’s raging ego. But the probability that it’s something worse has been increasing.
I agree that the Manhattan case is a bit thin, at least as far as what we’ve seen so far. Some think there might be other stuff that isn’t yet indicted for strategic reasons.
@daryl and his brother darryl: We have in fact constructed a very intricate process for declassification of documents. It almost certainly doesn’t bind the President, the ultimately classifying authority. It likely doesn’t bind very senior policymakers, either. I don’t like it but it seems to be the reality.
@gVOR08: I don’t think so. See, for the most recent example, the Mueller Report.
No, of course it doesn’t.
But there are additional steps beyond him blinking his eyes twice, steps that would leave a trail. A presidential declassification triggers a number of actions from various intelligence agencies. There is a reason his attorneys have never raised the declassification canard in…you know…actual court proceedings.
@gVOR08: Smith can only make the recommendation, the final say is with the AG who signs off.
@Jay L Gischer:
His ego is the Occum’s Razor explanation.
But with Mar-a-Lago being overrun by all kinds of people with little control, the unimaginable is certainly possible.
Then there is this kind of shit from…Kid Rock?
Sure – that was while Trump was still in the White House…but does anyone think his behavior has changed one little bit?
I hope to hell you are wrong about this
Think about what you are saying here. The AG should not indict someone on charges of interfering in an election because that perp is participating in another election. One which he will almost certainly attempt to interfere with if and when he loses. That is madness.
The problem with trump using the defense of, I declassified those documents, is that he will need to do it on the witness stand, under oath, leaving him subject to cross examination. That would be fun to watch.
It’s easy for Trump to sell anything to his fanboys, to GQP apologists, and to the Fox News set, because conservatives have become a stupid and pathologically dishonest cult. No matter where Trump was indicted and no matter who indicted him, it would be easy to convince the right it’s witch hunt. The modern Republican Party defends and excuses anything Trump says or does no matter how awful, nonsensical, and indefensible. So the “Democratic” point is moot. Republicans threw ultra-conservative Republican scion Liz Cheney under the bus to circle the wagons for Trump.
@Sleeping Dog: The other problem for a declassification defense is the documents’ classification status is likely a moot point. His potential crimes do not necessarily need classified documents to make the alleged actions illegal, as already noted above.
This might be why Trump’s lawyers have not yet introduced a declassification defense in their court filings.
Also, the president’s declassification powers are not “plenary,” and the president is not the ultimate authority on classification. The law is. For example, president cannot unilaterally declassify nuclear secrets because a law passed by Congress has said he can’t. So yes the president’s classification powers can be bound — and have already been. If nuclear secrets were among the documents in question, by law “I declassified them” is probably not a defense.
The president is not a monarch and not above the law.
I’m a little surprised that Trump isn’t facing more defamation trials. He claimed that specific poll workers were engaged in fraud, and they had to move and go into hiding because of death threats.
There are clear damages and clear misstatements of fact with disregard for the truth.
That’s the other thing. All the way back in 2017, an investigation under a Republican prosecutor appointed by the DOJ team Benito himself appointed to office, was sold to the base, and eaten up, as a politically motivated partisan with hunt.
So, screw the optics and put his orange ass in jail.
@Kathy: Exactly correct. Mueller was a lifelong Republican appointed by Trumpers. The lack of a Democratic prosecutor the didn’t stop (what passes for) conservatives from easily selling nonsense to the deplorables. The right still dismissed and obsfucated Mueller’s conclusions, which were damning for Trump.
Why? Because today’s Republicans are almost totally out to lunch. Waiting for the crazies to stop being irrational — as prerequisite to holding Drama Queen Donnie accountable — is a waste of time and energy.
Lock Him Up!
I don’t know whether to laugh or cry every time I read that Smith’s investigation is “deepening”, or “broadening”, or “intensifying”, or “seeking to interview new witnesses”. It is a classic example of the perfect being the enemy of the good.
Garland should have appointed a special counsel on 21 January 2021 to investigate an apparent conspiracy to obstruct a Congressional proceeding and seditiously overturn the result of an election. He should have given it whatever resources were requested and given it a year to submit a report. Instead, we were still reading in July last year that additional personnel were being added to the investigating team. But there was no criminal investigation of Trump personally, we were assured! Heaven forfend such a rush to judgement! There is nothing to suggest even now that Trump is the target of any criminal investigations by Smith.
The ship has sailed. It no longer matters what Smith does, because it is going to be too late to prevent a potential political catastrophe. And preventing such a catastrophe should have been his sole objective from the start.
@James Joyner: “I just think an elected Democratic prosecutor going after Trump is going to be easy to sell as politically motivated regardless.”
James, I think that you just made Michael’s point for him.
Are you seriously proposing that we wait upon Republican prosecutors?
@Barry: Nope, just making a point I’ve made all along about prosecuting Trump: it’s inherently political because of who he is. Joe Biden’s Justice Department indicting him is going to look vengeful and vindictive, even though DOJ is scrupulously apolitical. But that’s far better than elected prosecutors who are trying to make their political bones. In those cases, it actually is political—even though I agree that he’s guilty of crimes and ought to be prosecuted for them. It’s just an impossible situation.