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The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.
No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.
But.
Taking this seriously also should also mean that those looking on should not give way to elation and celebration.
And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.
It is too early to be clapping and cheering.
Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.
Imagine that the case against Trump could not be framed better and could not be put before the court better.
Imagine a dream prosecution, one where everything goes right.
Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.
This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.
And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.
There is a non-trivial possibility that Trump may be found not guilty.
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What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.
It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.
The consequences of such a vindication will be profound and lasting.
Of course, this possibility does not mean that the prosecution should not go ahead.
Nothing in this post should be taken to mean that the prosecution should be aborted.
The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.
The point of this post is to counter the jubilation at the indictment.
This is high-stakes litigation, in a case which may (as they say) make law.
Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.
But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.
A great deal rides on this case, and the outcome is not certain.
Brace, brace.
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I’ve been thinking that jury selection will take so long – this being the US – that the trial will never get underway.
Other likely outcome IMHO is that Trump simply runs out of money and decides that a presidential run is too much hassle all round (and the golf course looks much more inviting). He’s already leaking massive amounts in legal fees to his army of lawyers and it’s going to be long, protracted and exorbitant.
That assumes he’s actually paying them….. ;)
He’s asking his supporters for money to pay them.
That doesn’t mean they’re actually getting paid, I agree – but who, these days, would take on Trump as a client without getting a huge amount of money up-front?
I was thinking the same thing. The problem I see is that no matter how strong the case, juries are bound to contain a few diehard Trump supporters. After all, the country is split down the middle on his guilt. His supporters are well used to disbelieving facts that don’t suit their view of him. They might at least doubt evidence against him and honestly vote not guilty. Even a majority guilty verdict seems a long shot.
The strongest case is possibly the secure documents one, since some of the evidence against him is from his own words. One can only hope those charges stick.
I know neither of us are US lawyers but doesn’t it look like proving the necessary intention might be a major hurdle? I’m sure the prosecution are aware, but wow.
I was thinking purely about whether some jurors would judge him regardless of evidence. Intent might be tricky for the election indictments, but in the case of the secret documents he was caught red handed.
It is beyond anyone’s power to prove what is in someone else’s mind. Intent is always inferred (even with a confession all the elements of the crime must be proven). But courts infer intent from a person’s words and actions: a man is deemed to have intended the consequences of his actions. Once the words, actions and consequences are proven and the intent thereby proven, the onus of showing a lack of intent shifts to the accused person to show he did NOT intend the reasonably forseeable consequences of his actions. In my criminal court experience proving intent has generally been the least difficult part of proving guilt.
Is there any chance that he could be elected president by the time the case its decided? If so, could he just pardon himself?
Yes, and probably not due to the principle of Nemo iudex in causa sua.
If he can pardon himself, then maybe this could be a sufficient abuse of his powers to get him impeached and thereby deposed. If there is no peaceful means to get rid of him, then the USA is in the same position as other countries who have leaders who cannot be peacefully deposed and must resort to violence, presumably civil war given the amount of support Trump has.
He cannot, (as I understand it based on a smattering of Google legal research) pardon himself from State charges.
The Racketeering charges in Georgia and his problems in NY are big issues for him, although the Georgia Parliament is trying to get a law on the books that allows them to dismiss prosecutors for any reason.
That could be a way to nullify the charges….although how they’d fare at the polls after effectively crowning King Trump is anyone’s guess.
A problem for Trump is, of course, that he has great difficulty in getting decent lawyers to represent him. Whether it’s because he doesn’t pay them or because of the reputational damage, only those with little litigation experience will sign on.
Some crumb of comfort from the fact that Trump’s lawyers look unlikely to shift the trial from DC to Florida. Unlike Florida, DC is heavily Democrat. And DC residents, who will form the jury pool, were at the centre of the storm when the Capitol was invaded and likely to have a dimmer view of the occasion than the country at large.
Jury selection is a notoriously dodgy business in the US, with lawyers and consultants of both sides trying to get a jury sympathetic to their side. This could all take some time…
My biggest fear is that Trump will, as he should, be found guilty and imprisoned, leading to further insurrection from his supporters who simply will not believe the honesty of the evidence or the integrity of the conviction.
I too have felt uneasy at the celebrations, not least because some on the Trump side have suggested that this is a watershed moment; any and all perceived mis-steps will now be litigated. If Trump is found not guilty, that will not put the genie back in the bottle.
The Senate should have convicted him. It was a failing of their democracy that it did not. The winners in all this will not be the America people.
Far from glee, it’s difficult not to feel impending doom and, as with Johnson, the wearing tedium of having to witness someone who has clearly acted monstrously dancing about denying that clarity.
I agree with everything in DAG’s posting. However I would add a couple of further points – although I agree ‘the strongest case is possibly the secure documents one’, on purely legal/evidence grounds, there are two other crucial factors. The judge, and the location. Judge Aileen Cannon has a clear history of rulings favouring Trump in previous cases (reversed fairly brutally by the Florida Appeal Court, with withering condemnation of her rulings). I’m surprised she didn’t recuse herself from this documents trial (she was also appointed by Trump, as another factor to add to this). She is very likely to continue to favour Trump in her rulings (though she also appears to be fairly incompetent, so will perhaps not do so skilfully I guess).
The Florida jurisdiction also means it is likely the jury pool could consist of a high proportion of Trump supporters. Voir dire will presumably act to obtain as fair a jury as possible, but it would only take a couple (or even just one? Not sure of the US law here) of keen MAGA fans who get through the process to produce a hung jury, no matter how strong the evidence.
Although I agree with DAG the Jan 6th counts are harder to prove (as well as being extraordinarily serious – essentially the first time in US history a defeated President has tried to overthrow the electoral system instead of accepting defeat), the location and Judge are both much more favourable. Washington DC as the trial location will make it far easier to find a reliable jury; and from everything I’ve heard Judge Tanya Chutkin is of a very different calible from Florida’s Eileen Cannon. Judge Chutkin will, from her reputation, be scrupulously fair to Trump in ensuring a fair trial, but also steely in enforcing a disciplined and hopefully fairly speedy trial. The last point is also an issue – completing the trial before US voters have to cast their votes in Autumn 2024. I suspect the Florida documents trial to be delayed beyond then, partly because of Judge Cannon’s likely favouritism towards the Trump side, but also because of genuine technical issues to do with time taken for clearances etc. in relation to the classified documents.
My understanding is that neither in federal courts nor in any state courts are majotrity verdicts possible.
“And Trump will be fighting for his political life” and also fighting to stay out of jail.
“THIS IS AN ILLEGIMITATE, CORRUPT AND VEXATIOUS TRIAL”.
Well, that has been the message posted out so far by the Trumpian loyalists,, encapsulated in the slogan ‘witch hunt’ (and its UK equivalent ‘Kangaroo Court’).
Given he is innocent until convicted – another precept of traditional law, frequently dismissed or ignored, he will have ample opportunity to repeat the message.
Of course, the message is not about the trial, its a characterisation of the prosecutors. I suspect that the trial will be an appeal to the jurors to agree with Trump’s characterisation.
And David is, of course, quite right to recall that should no conviction be secured, then that attack line will be vindicated, along with undeniable implication that the hallowed constitution itself is now corrupted, and illegitimate.
Anything short of an enduring conviction will open a whole new chapter in US political and constitutional history.
There are many scenarios, but the one that most interests me is the plausible one where the trial is incomplete when Trump becomes president. Can he simply appoint a new Attorney General who orders the case to be dropped?
It is important to put these charges, because Trump’s actions ought to be quite unlawful, and we need to see it in court to be assured the US law will find these things unlawful. From commentaries I have read and watched, Smith has focused on the strongest cases where there is clear precedent the evidence available suffices for those charges. These charges may be rare, but there is enough experience with them. The Washington Post suggested showing intent would be a problem, but LegalEagle gives a convincing refutation of that.
As DAG wisely says, there is always a risk that things go wrong at trial.
My feelings have nothing to do with excitement – it is deep sadness and disappointment that he can have such a persistent following and that people who seem rational can bring him to high office. I fear that this trump experience will prove to be a signal of the decline of the US (a sort of self-imposed ‘Suez’ moment). True, Democracy is a better system than the alternatives, but instrinsically, it works to find the lowest common denominator, which, as it grinds through its algorithms must end, it seems, with grotesque populist demagogues.
The man is despicable. Schadenfreude yes, but not excitement.
It’s surely reasonable both to be jubilant about where we are now and understand that the show’s not over till the fat lady sings.
Not just this…with all the news and media various different legal analysis videos on both sides…each announcement trumpeted round tje world…can they get an unbiased jury that hasn’t formed some opinion from all of the surrounding furor
See
https://www.nytimes.com/2023/08/08/us/politics/trump-indictment-fake-electors-memo.html?campaign_id=190&emc=edit_ufn_20230809&instance_id=99630&nl=from-the-times®i_id=71487355&segment_id=141517&te=1&user_id=e84b64f2e9ab7c942a338c422d8efa04
I agree that there is no reason for jubilation.
This may not be a popular opinion but I think the prosecution is foolish for reasons set out within your post. There are times when prosecutions, particularly on problematic charges, is unwise. This is, to my mind, one of them. He could be turned into a cause celebre with resulting huge damage to the USA.
It is one thing to say that there are huge dangers attendant on the prosecution of Trump, which is surely correct, but it is quite another that he should be immune from prosecution for blatant, overt, and serious breaches of the law on the basis that this one person uniquely in the whole of the United States should be above the law. That is the very definition of a dictatorship. If tolerated, further and far more serious crimes would surely follow. The precedents are too obvious to require listing. DAG was absolutely right to point out how dangerous the situation, which is how I interpreted his post.
See this morsel of hope!
https://www.nytimes.com/2023/08/15/opinion/trump-indictment-georgia-fani-willis.html?campaign_id=190&emc=edit_ufn_20230816&instance_id=100214&nl=from-the-times®i_id=71487355&segment_id=142195&te=1&user_id=e84b64f2e9ab7c942a338c422d8efa04