Special counsel Jack Smith has brought charges against former president Donald Trump, breaking the string of federal prosecutors without the courage or commitment to justice to prosecute Trump for the many crimes he’s committed in plain sight. The 37-count indictment handed down by a Miami grand jury deals with Trump’s alleged mishandling of sensitive documents. I feared that Smith would be an updated version of Bob Mueller, but this indictment puts those concerns to rest. I’m happy to have been wrong about him. As near as I can tell, no punches were pulled, and Trump was given no special treatment. Trump has been charged under the Espionage Act with willful retention of national defense information, conspiracy to obstruct justice, and making false statements to criminal investigators. Trump is in more legal jeopardy now than he has been at any time in his corrupt life.
Unlike the charges brought against Trump by Manhattan District Attorney Alvin Bragg, Smith’s charges could very well land Trump in jail, should he be convicted. This is like getting Al Capone for tax evasion, and I mean that in a good way: These are serious federal charges, and while they focus on Trump’s crimes against documents as opposed to his crimes against democracy, they still have plenty of teeth (charges against Trump for his crimes against democracy could still be coming, as Smith’s investigation of January 6 is ongoing). If Trump winds up in prison, I don’t think most people will care that he’s in there for storing national security secrets in his gaudy bathroom as opposed to sexually assaulting women or trying to have Mike Pence assassinated. You can’t always get what you want, but sometimes you get what you need.
Unfortunately, standing between Trump and the federal penitentiary he so richly deserves are Trump-appointed MAGA judge Aileen Cannon and the 2024 presidential election. Either of those factors could save Trump from his doom, even though Smith has enough evidence to put him away.
Cannon, the Florida district court judge picked to preside on this coming Tuesday over the arraignment of Trump on these charges, is the most obvious problem, though potentially not in the way people think. People remember Cannon from her unethical decision to appoint a special master in this very case; she had tapped the special master to determine whether Trump had executive privilege over documents he had no right to claim executive privilege over. Cannon’s nonsensical ruling was overturned by the US Court of Appeals for the 11th Circuit, but she’s already exposed herself as a hack. People rightly fear a series of pro-Trump rulings from a biased judge who will put her thumb on the scales in favor of the man who appointed her.
A trial judge has a lot of power, including the tactical nuke of “Rule 29,” which allows a trial judge to ignore a jury verdict as a matter of law. That means, technically, that Trump could be tried and convicted by a jury, and Cannon could just say “no” and order him freed. However, I think it is unlikely that Cannon would go that far. As my former colleagues at Above the Law have noted, Cannon is a hack, but maybe also a coward.
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I expect Cannon to be less of a chaos agent and more of a force for delay. It’s Cannon who will get to decide how long Trump’s legal team (which is new, as he fired his previous lawyers who failed to prevent him from getting indicted) should have to get up to speed on the case, Cannon who will set a trial date, and Cannon who will rule on all the motions filed by Trump’s legal team. It will also, most likely, be Cannon’s bad and poorly constructed rulings that have to be appealed to the 11th Circuit before the proceedings can continue. Even if the DOJ moves to remove Cannon from the case (which it can do, arguing that Cannon has appeared so biased that her presence undermines public confidence in the court), the very process of getting rid of Cannon will cause delay.
Any delay—be it induced by MAGA Cannon, Trump’s revolving team of lawyers with the bad judgment to take him on as a client, or just the natural difficulty of bringing a former president to criminal trial—helps Trump. That’s because Trump’s best path toward retaining his freedom is to delay his trial until after the feckless Republican Party crowns him as their leader during their national convention (set to happen in Milwaukee from July 15 to 18, 2024) or until after the November presidential election.
It’s important to understand that Trump has no legitimate legal defense against these charges. The indictment itself shows that Trump blew his only viable legal argument—which was essentially that he was too stupid to know that he had taken classified documents he didn’t have the right to keep—by running his mouth. They’ve apparently got Trump on tape saying that he knows the documents are confidential, knows that they haven’t been declassified, knows that, as a private citizen, he can no longer declassify them, and knows that he shouldn’t have been showing them to the person he was sharing them with. That is, legally, the ballgame. That’s knowledge of wrongdoing, and intent to commit wrongdoing.
Trump cannot reasonably defend what he did, but if he becomes president again, it won’t matter. All he has to do is get to the election to have a chance at that—or, really, the point in the election cycle where it becomes functionally impossible to try him before the election.
People can argue that Trump should be brought to trial whenever a “normal” person would be, regardless of the political calendar, and I agree with that sentiment, in theory. I think I am well on record as saying Trump should be prosecuted regardless of his status as a candidate for office. But if we could just speak as adults for a moment, the political realities of holding a criminal trial for Trump, not years before the election (like I wanted), but a few weeks after he’s been named the Republican nominee, and a few more weeks before the general election, are just daunting. In such a situation, every single campaign ad run by Trump in Florida would be a form of jury tampering, only no judge (least of all Cannon) would prevent him from tampering with the jury in that way, so he’d just get a free run at poisoning the jury pool under the guise of running for office.
And if he’s convicted, what are we going to do, put the man in jail a few weeks before the election? Does everybody want to act like James Comey all of sudden? What if the ballots have already been sent out? What if early voting has already started? What if he’s leading in the polls? Imprisoning a major party candidate, one of two functional options in our electoral system, weeks before an election, is just not something I think this country is going to do.
Right now, Republicans are mewling like hysterical children as they accuse Smith, Garland, and the entire Biden administration of prosecuting Trump for political reasons. They are wrong. This isn’t political: Trump stole national security documents, showed them to people without clearance, and wouldn’t give them back when asked. It’s not political to charge him; it would have been political not to charge him.
But trying and potentially imprisoning Trump after he’s been named the Republican candidate for president next July (assuming Republicans continue on their established path of debasing themselves for Trump’s white supremacist base) before the general election, would appear political, inescapably so. We can talk all we want about the “rule of law” and “equal justice for all,” but jailing political candidates right before elections is what the bad people do. If Trump makes it to July 2024, he’ll almost certainly make it to November 2024, and then we’ll have to beat him at the polls in order to have any hope of convicting him for his crimes.
My guess is that between Cannon, Trump’s willingness to file garbled motions with no hope of success, and just the normal operation of the legal process, Trump will make it to the convention. He’ll get there, and then his lawyers will file a motion (if they hadn’t already) asking to delay the trial until after the election due to the “extraordinary circumstance” of trying to prepare for a weeks-long criminal trial in the midst of a presidential campaign. And eventually, they’ll find a Trump-appointed judge or panel of Trump-appointed judges who will agree.
It’s worth remembering that in February 2022, eight months before the midterm elections, alleged attempted rapist Brett Kavanaugh (along with four other Republicans on the Supreme Court) ruled that we were too close to the November 2022 midterm elections to force Alabama to change its racially gerrymandered maps. The same Kavanaugh ruled last week that those maps were indeed racist enough that Alabama should fix them, but Alabama still got the benefit of those racist maps during the last election. The two situations are not exactly analogous, but I promise you that the argument that Trump should be able to delay his trial once he’s been named the Republican Party’s presidential candidate will find purchase among some Trump-appointed judges throughout the judiciary.
The die on this timeline was cast a long time ago. I argued (repeatedly and vociferously) that Garland and the DOJ needed to indict Trump quickly, ideally before the 2022 midterms, so that he could be brought to trial in 2023 and potentially convicted well clear of the 2024 election cycle. But that didn’t happen, so here we are. Smith was appointed only in November of 2022, and he appears to have done a thorough and dogged investigation that has laid bare a serious set of offenses. He’s done his job, and he can be expected to continue to do his job.
Now, the American people have to do their job: reject Trump’s bid for a second term in office and deny him the opportunity to pardon himself or cloak himself in executive power to avoid the charges Smith has brought to light. If we want Trump to face the nonpartisan hammer of justice, he must suffer another political defeat.
Trump will get another chance to run for office, another chance to steal the election, and another chance to organize a coup should he fail to win the presidency. To stop him, we will have to outvote his people, again. At least this time, if we beat him, there will be handcuffs waiting for him when it’s over. I guess slouching towards Bethlehem is better than giving in to despair.
