A Straightforward Briefing of Trump’s Legal Cases

September 9th, 2023

Thanks for letting us in this Saturday morning.
 
Today we’re offering a rundown of the four legal cases facing former President Donald Trump.
 
We don’t usually wade into issues like this, especially ones that seem to generate endless media coverage already.
 
But over recent weeks, we’ve heard from, or talked to a number of you regarding the confusion around the legal situation(s) surrounding the former president. 
 
Media coverage of the whole spectacle is just exhausting, and it can be a challenge to find some semblance of objective truth between “send him to jail now” on one side and “this is all made up” on the other.
 
We’ll attempt to fill that gap. No opinions, no judgement – Only this: We ranked the four cases in order of what seems the most perilous and least perilous to Trump, and found some of the leading opinions to provide balanced context. 
 
Thanks for reading.
 
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Federal Charges Over Classified Documents at Mar-a-Lago
 
On June 8, 2023, the U.S. Department of Justice unsealed an indictment handed down by a federal grand jury centering on Trump’s alleged retention of classified national security documents. On July 27, 2023, a grand jury issued a superseding indictment adding more to the charges.
 
In total, Trump is charged with 40 criminal counts, including obstruction of justice. U.S. Attorney Jack Smith, 54, is leading the case. Attorney General Merrick Garland appointed Smith as special counsel in November 2022.
 
In general, legal commentators view this case as the strongest of the four against Trump. There appears to be voluminous evidence – including documents, photographs, written communications, and audio recordings – indicating Trump possessed classified documents, knew he possessed the documents illegally, and acted to shield archivists and investigators from recovering the documents.
 
The trial is set to begin in Florida in May 2024. If convicted, Trump could pardon himself if he wins the election.
 
Jonathan Turley, a right-leaning legal commentator and professor at George Washington University, told Fox News, “It is an extremely damning indictment. There are indictments that are sometimes called narrative or speaking indictments. These are indictments that are really meant to make a point as to the depth of the evidence. There are some indictments that are just bare bones. This is not.”
 
Michael Bekasha, a senior attorney at right-leaning Judicial Watch, wrote for the Wall Street Journal comparing this case to one involving former President Bill Clinton’s presidential records: “As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012. A decade later, the government should never have gone searching for potential presidential records. Nor should it have forcibly taken records from Mr. Trump. The government should lose U.S. v. Trump. If the courts decide otherwise, I want those Clinton tapes.”
 
State Charges in Georgia Over Election Interference
 
Fulton County District Attorney Fani Willis secured indictments from a grand jury on 135 state counts against Trump and 18 others on August 14, 2023. Willis is elected to her position. This is her first term. She took office on January 1, 2021.
 
The indictment, which runs 98 pages, centers on efforts by Trump and his allies to allegedly overturn the results of the 2020 presidential election in Georgia and six other states. 
 
The charges include violations of Georgia’s racketeering act, which generally involve conspiracies to commit crimes even if the crimes were not successfully perpetrated.
 
One of the charges, solicitation of violation of oath by a public officer, centers on Trump’s January 2021 phone call to Georgia Secretary of State Brad Raffensperger in which Trump allegedly pressed Raffensperger to “find” enough ballots favoring Trump to tip the election in his favor.
 
Other charges, including conspiracy to commit forgery in the first degree, involve Trump’s alleged effort to present an alternate slate of electors naming him the victor in Georgia.
 
Still other charges allege Trump made false statements and filed false documents in an effort to convince Georgia officials, including legislators, to take action to change the results of the election.
 
No trial date has been set. At a pretrial hearing this week, a representative for Willis told Judge Scott McAfee that the DA intended to try all 19 defendants simultaneously, beginning next month, and that the trial would last approximately four months.
 
The judge said he was “very skeptical” of that plan.
 
Legal commentators on both sides of the aisle generally accept that the lengthy indictment is very broad and captures some conduct that might be construed as political speech or campaign-related behavior.
 
Even so, given the volume of the charges and the evidence supporting some of them, there exists a general view that Trump will likely be found guilty on some of the counts. Because the charges are state, not federal, Trump cannot pardon himself. If Trump wins the election and the case is ongoing, it will likely have to pause until he finishes his term. What happens if Trump is found guilty, sentenced to prison, and then elected president is an open legal question.
 
Ruth Marcus, a Washington Post columnist who often writes critically about the U.S. Supreme Court, argued: “Whether [this] prosecution is advisable, in the wake of federal charges arising out of the same conduct, is a tougher call — one about which I have substantial misgivings…The very first overt act it cites in furtherance of the alleged conspiracy is Trump’s speech declaring victory in the early morning hours following Election Day. Overt acts don’t have to constitute crimes in and of themselves, but using a candidate’s victory speech as evidence against him is one aggressive move.”
 
Sarah Isgur, a writer for The Dispatch, argued, “Because the laws in the state are so broad, I think Fani Willis will, in many ways, have an easier go of things than federal prosecutors. There are some legal problems with parts of the case, but those issues won’t matter as long as prosecutors can secure convictions on some of the more straightforward counts. Prudentially, however, there’s a lot to dislike about this case. It’s being brought by a partisan prosecutor, will be heard by an elected judge, and includes a lot of extraneous and unnecessary charges and overt acts.”
 
Federal Charges Over Election Interference
 
On August 1, 2023, a federal grand jury in Washington, DC indicted Trump on four charges: conspiracy to violate rights, conspiracy to defraud the government, obstructing an official proceeding, and conspiring to obstruct an official proceeding.
 
The charges all center on Trump’s alleged attempt to overturn the 2020 election results and his alleged involvement in the January 6, 2021, riot at the U.S. Capitol. It’s a narrower prosecution of many of the alleged activities that the Georgia case covers.
 
U.S. Attorney Jack Smith is leading this prosecution. In a statement after the indictment, Smith said, “The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies.”
 
The outcome of the case will hinge on whether Smith can prove Trump knew he lost the election but proceeded to claim otherwise anyway.
 
Conservative commentator Hugh Hewitt wrote in the Washington Post, “Holding tight to far-fetched hopes, especially amid a miasma of supporting narratives, is not a crime. The idea of charging it as one is ridiculous and sets an awful precedent that will haunt this republic down the years.”
 
Ryan Goodman, a law professor at NYU, and Andrew Weissmann, a prosecutor on Robert Mueller’s special counsel investigation, wrote in the New York Times, “As the narrative of the indictment lays out, Mr. Trump’s schemes — to sell the big lie and promote election fraud even when he privately conceded to advisers the claims were ‘unsupported’ and ‘crazy’ — are what contributed to the attack of Jan. 6. And it is a relief that the indictment includes Mr. Trump’s role and responsibility in that violence.”
 
State Charges Over Hush Money Payments to Stormy Daniels
 
On April 4, 2023, Manhattan District Attorney Alvin Bragg announced a grand jury indicted Trump on 34 counts of falsifying business records. Bragg is elected to his position.
 
Legal commentators broadly agree that this is by far the weakest case against Trump. Falsifying business records is a misdemeanor offense unless it’s related to concealing a second crime. But Bragg has not charged Trump with a second crime, only signaled it may relate to a federal election law violation.
 
The falsifying records claims are connected to Trump documenting payments to his former lawyer, Michael Cohen, as legal expenses even though Cohen used them to pay adult film star Stormy Daniels to stay quiet about her relationship with Trump.
 
Writing for Slate, left-wing legal commentator Richard Hasen argued, “Based on what I have seen so far, the decision to charge Donald Trump with felonies in New York state is a mistake both legally and politically…It is said that if you go after the king, you should not miss. In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.”
 
Ian Millhiser, a correspondent for the left-wing outlet Vox, wrote, “Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.”