A Trump indictment, for real this time?

A D.A. eyes charges as Trump faces 3 open probes

Mar 13

Is Donald Trump actually going to be indicted this time? That’s the subject of my new article below.

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“Likely” Charges

A criminal indictment of Donald Trump is now “likely,” according to the New York Times.

The paper’s bombshell report on the New York D.A.’s case sent shockwaves across Trumpworld and the legal community.

Meanwhile, other people are like, over it.

Not over the hope for accountability, of course. But the nation is now roughly six years into this Trump era. A development that would have been an absolute explosion in 2016, or huge deal in 2018, now lands like another incremental thud. Many people either want full accountability – actual charges, actual convictions – or to move on.

That mood, and a fatigue or tolerance for all this, may explain how the nation has digested or “normalized” this truly unusual, disturbing reality:

The leading GOP candidate for president faces four open criminal probes across three jurisdictions: The New York case on his 2016 hush money payments; the Georgia case on election interference; and the D.C. cases on classified documents and January 6.

Whatever one thinks of Trump, of course the mere existence of an investigation should not preclude someone running for office in a democracy. On the other hand, there is overwhelming public evidence that Trump abused his power to steal the last election and stage a coup. Even if those plots are not proven at a criminal level – which is entirely possible – it is galling that a major party is open to handing the keys to democracy back to an attempted autocrat.

Those are the stakes.

The actual legal probes range quite a lot, though they are practically linked in ways that prosecutors won’t admit out loud. Today I’m going to explore that a bit, focusing most on the gravest probe at the DOJ.

Three very different probes

The New York case is the smallest. That’s a legal fact – the conduct is about Trump’s actions as a candidate, before ever becoming President. The relevant laws begin with a misdemeanor. It’s also the simplest case – provable with payments and receipts, and a crime that was already proven and convicted, in Michael Cohen’s federal case.

Michael Cohen after being sentenced to three years in prison.

The Georgia case is more serious. An outgoing President trying to use, or abuse, his power to steal a state election. It’s also more complex, as there is less direct evidence on Trump (compared to checks, etc), and open questions about the unprecedented effort of a local prosecutor to bring charges to protect a (federal) presidential election.

Then the cases in D.C. are the most serious. Former government officials have gotten in plenty of trouble for deliberately stealing classified documents, and the insurrection was the gravest attack on Congress linked to a sitting President in the modern era.

Who wants to go first?

Each of these cases are separate, and prosecutors reach independent judgments about whether to indict. Local prosecutors do typically defer to The Feds when there are multiple charges for the same conduct or scheme, but that balancing comes after both jurisdictions have charged. Here, no one has yet jumped in to be the first prosecutor to indict a former President.

So while New York is the most minor case, if the D.A. acts there, that could make other prosecutors more likely to move ahead. This is one of those dynamics that prosecutors don’t admit, and that isn’t really taught in law school. But it is observable by inference – the Western legal system is based on precedent. Prosecutors and judges are steeped in it, and trained to avoid or second-guess making “new precedent” when possible. (Consider Supreme Court nomination hearings, where nominees in both parties insist they will follow precedent, not make it.)

So the New York case may matter not only for its direct impact on Trump, but for its potential to soften the ground here. And that brings us to the most serious case, and most secretive process.

An uncharged sedition?

The gravest criminal case for Trump, and the nation, is the now two-year probe into the insurrection America lived through. It started quite slowly, (as I’ve previously written about).

Then the Attorney General appointed a special counsel, Jack Smith.

Then Smith took actions which reinforce how slow and meek the initial probe was – they never even tried to talk to Mark Meadows, who was at the center of the coup plot? – and that he was now ratcheting up pressure. He recently subpoenaed Meadows, Ivanka Trump, Jared Kushner, and Mike Pence. (Smith is also pushing to use testimony from Trump’s lawyers).

Smith’s probe has leaked less than the case in Georgia and New York. He has the most serious case against Trump and his aides, and the strongest legal footing to prosecute January 6 plots, which were chiefly federal crimes (though not exclusively).

No one knows what he will do. There are some clues in his career, however.

Smith is steeped in the process of prosecuting heads of state. That is rare for American prosecutors, because it’s not something the U.S. has ever done. Smith got that experience by working abroad, as a war crimes prosecutor at the UN Court at The Hague in the Netherlands. At a minimum, that means he is less ignorant or “afraid of the unknown” in going down the path of indicting Trump, if he finds the evidence supports it.

At The Hague, for example, Smith indicted Kosovo’s sitting President Thaçi. And Smith had to outsmart the President’s attempted end-run around the charges, timing them to beat a planned U.S. meeting where the President might have tried to summon opposition to The Hague’s authority.

Without getting into all the details, the point is, a politician defendant has more available leverage and ploys than most defendants, and a skilled prosecutor has to be ready for that.

Smith has been quite careful, sober, and dry – almost boring – in his approach to cases. Even while making big arguments or clashing with gangsters and drug lords, he cuts a somber figure. Peers say he has used that style to great effect with juries and judges, though as Robert Mueller found, a clash with Trump’s PR and online onslaught requires different skills for how reality is defined, out of court.

Smith doesn’t back down easily. He is not only legally aggressive, but he has actually lost some “hard” case. For example, Smith prosecuted American politicians as the chief of the DOJ’s Department on Public Integrity. He oversaw a trial that largely failed, when the DOJ indicted John Edwards on campaign finance charges. (The details actually overlap with the theory of the case against Trump in New York.)

That history might prove relevant here. While no honest lawyer should bring a clearly illegitimate case, Trump has evaded accountability with everyone from the IRS to other prosecutors by contesting, delaying and defying in ways that make his cases seem hard. (So far, it’s worked.)

Endgame

For all the evidence and legalities, Smith’s attitude and backbone will probably matter the most. It’s not that a prosecutor’s attitude should shape the outcome of a probe, but rather, in this particularly unusual case it will be crucial if there is a debate to be had.

Think about it like this: If there is clearly not sufficient evidence to charge Trump for January 6, then the case just dies. The career prosecutors write out that conclusion; the special counsel is not really positioned to overrule them and just “find” his own separate, conflicting evidence. Smith then presents that decision to the Attorney General, who is primed to accept what his appointee finds, especially when it doesn’t rock the boat. (A.G. Garland has all but said as much.)

If there is strong (or overwhelming) evidence to charge Trump for January 6, however, that inevitably tees up a much broader judgement about whether to act… to make precedent… to balance the obligation to enforce the law regardless of the target and protect democracy, with the non-legal but real “pressures” on the DOJ and Biden administration as a campaign approaches. Those are dilemmas that basically come back to the prosecutor’s attitude and instinct. If Smith takes a recommendation to indict to Garland, then the Attorney General may accept the decision, and cast it as part of the nonpartisan process (rather than a decision “made” by Garland, a Biden appointee). Or legally, he could still overrule it.

But we will know if he does that. If Garland overrules Smith on a major decision, that disagreement must be reported to Congress, under the current, binding DOJ rules (originally drafted by Neal Katyal). Smith is not alone in the driver’s seat, but he has a unique say on the path ahead. And as three different prosecutors circle Trump, Smith may not even be the first to move, but he has the strongest position to finish the job, if the facts support that.

Ari Melber