One consequence of former President Donald Trump’s indictment by the Justice Department is that many Americans will learn a thing or two about how federal prosecutors actually work.
Tuesday’s lesson from Miami? The first hearing in a criminal case is not that interesting. Everyone involved — the government, the defendants, their lawyers, and the court — is looking much further ahead.
Trump was represented by Todd Blanche and Chris Kise, following the departure last week of two attorneys who had been handling Trump’s defense while the case was still in its investigation stage.
Blanche is a former federal prosecutor in Manhattan who was already working on Trump’s defense in the criminal prosecution brought by the Manhattan District Attorney’s office earlier this year. His task now in Florida is to prepare and conduct an effective criminal defense in the most high-profile criminal case in recent memory.
Here are 6 things Blanche and his colleagues are almost certainly working on as we speak:
Motions to Dismiss
There are a variety of pretrial motions that a criminal defendant can bring.
One of them is a motion to dismiss some or all of the counts in an indictment because they are legally deficient on their face, even assuming all of the factual allegations in the indictment are true. This is a very high bar for criminal defendants to clear, but motions to dismiss do get granted from time to time.
In this case, Trump’s lawyers may be evaluating whether they can get the case tossed on the theory that Trump had the inherent authority to declassify and remove material upon leaving office.
Most informed legal observers have strongly disputed this claim, and in any case, it has no obvious bearing on the charges related to Trump’s obstruction of the Justice Department’s investigation.
Trump’s lawyers might also file a motion to dismiss based on alleged selective prosecution, on the theory that Trump has been singled out by prosecutors while other Democratic politicians, like 2016 presidential candidate Hillary Clinton, were given a pass for their alleged mishandling of classified information.
The argument has formed the centerpiece of the public defense of Trump by his political allies in recent days, but it is far from compelling as a legal matter: The allegations against Trump are distinguishable on multiple grounds, including, most notably, the extensive and elaborate alleged effort on his part to obstruct the government’s investigation.
Now that Trump has been indicted, the government is required to disclose a considerable amount of information to the defense, including the evidence that prosecutors intend to introduce at trial, any exculpatory evidence, and statements made to the government by witnesses that they intend to call at trial that were provided either in voluntary interviews or before a grand jury.
The scope of the government’s discovery is often contested by defendants, so do not be surprised if Trump’s lawyers file motions for additional discovery beyond what is unilaterally provided by the government.
Trump’s lawyers will want to obtain as much of this information as quickly as possible, and they will want to go over it as closely as they can in order to identify any information that they believe might be helpful to them — including exculpatory evidence as well as misstatements or inconsistent statements on the part of witnesses that the government may call at trial.
In theory, Trump’s lawyers’ review of the government’s discovery might also generate investigative leads that they may want to follow to buttress their defense.
Motions to Suppress or Exclude Evidence
This is another major area of pretrial litigation in criminal cases.
Defendants can move to suppress evidence that they believe was unlawfully obtained — for instance, if the defendant’s constitutional rights were violated by an unlawful search. As the trial approaches, they can alsomove to exclude evidence from the government’s case on a number of grounds.
Not surprisingly, Trump’s lawyers are reportedly looking into the possibility of moving to suppress the evidence obtained by the government from Trump’s lawyer Evan Corcoran, who produced what appears to bekey evidence concerning his dealings with Trump as they were responding to the Justice Department’s grand jury subpoena last year.
The government had to litigate in federal court in Washington, D.C., to obtain that evidence, but Trump’s lawyers may try to relitigate that issue now that they are in Florida and now that they will have more information to mount an objection.
Evidence of Prosecutorial Misconduct
Trump’s lawyers are also going to be on the lookout for any potential prosecutorial misconduct that they might be able to use to narrow or derail the case.
Thus far, the arguments along those lines that have been advanced in recent days have not been particularly compelling as a legal matter, but in theory at least, that could always change depending on how things unfold.
An Alternative Narrative
Trump’s lawyers are also no doubt looking for something in the way of a coherent alternative narrative to advance in court and at trial.
After the search of Mar-a-Lago last year, Trump and his since-departed lawyers offered an array of factual claims and arguments in the court of public opinion, but they never came together to form a cogent and persuasive account of what transpired that might actually help Trump.
Of course, Trump is under no obligation to prove his innocence in court — like all criminal defendants, the burden is on the government to establish Trump’s guilt beyond a reasonable doubt, and there is no requirement for Trump to testify or even call any witnesses — but the best defenses have some alternative theory of the case that jurors can potentially latch onto. (“Hillary did it too,” in addition to being wrong on the facts, is not likely to get very far.)
The Trial Date
Trump’s lawyers also face a major strategic question about whether and how to drag out the schedule past the 2024 election if Trump is the Republican nominee for president.
If they pursue this path, they may not need much help in this regard, since Trump appears to have gotten very lucky with the appointment of district judge Aileen Cannon as the presiding judge.
Cannon is a Trump appointee and the same judge who got reversed by the 11th Circuit Court of Appeals last year after she appointed a special master to oversee the government’s review of the material recovered from Mar-a-Lago. She is now, once again, the most closely watched judge in the country.
A version of this initially appeared in the June 13 Nightly newsletter.
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