Two years from now, Donald Trump could be in prison or he could be president.
Those scenarios occupy the two ends of the spectrum of Trump’s legal exposure now that he has been indicted by the Justice Department over his deliberate retention of classified documents and his refusal to return them to the government. That remarkable duality also underscores an unavoidable element of the prosecution — that it is both a legal proceeding subject to established rules and procedures, and that it is also closely intertwined with the political process that is currently playing out in the Republican presidential primary and that will continue through next year’s general election.
There is little question that Trump’s federal indictment is much more serious than the criminal case brought against the former president in Manhattan. In the simplest terms, that case exposes him to a maximum four-year term of imprisonment, while the most serious charges brought by special counsel Jack Smith and his colleagues have a 20-year statutory maximum (or “stat max,” if you want to sound like you’re in the know).
That crude comparison can be highly misleading, however, because as any former prosecutor will tell you, the sentencing process that follows a criminal conviction is supposed to be both highly fact-specific and guided by sentencings in comparable cases, to the extent they exist. Many experienced lawyers and legal observers have been dubious that Trump would actually be sentenced to any prison time if he is convicted in Manhattan, owing to the unusual nature of the charges, Trump’s unique status as a defendant, and New York’s relatively lenient treatment of white-collar defendants.
That suggests that Trump should be much more concerned about the federal charges, and no doubt he is, but he has a potent tool available to him that he is currently working to secure: his reelection.
If Trump is reelected president, there is little question that he would pardon himself regardless of how far along the prosecution is at that point. He could also direct his attorney general to dismiss any pending criminal cases and close any open investigations that might ensnare him or his associates. This could conceivably be accomplished even if Trump does not have a Senate-confirmed attorney general in place, since he could fire any acting attorney general(s) until he finds someone who will do what he wants.
All of this means that Trump’s federal prosecution is inextricably intertwined with the national political process, and the text of the indictment makes clear that the special counsel and his team are acutely aware of the public significance of their work. That is no doubt why they chose to use what prosecutors call a “speaking indictment” — one that contains far more detail than is strictly necessary as a legal matter and that appears designed to send a message to the American public about the seriousness of Trump’s alleged conduct. During his brief public appearance on Friday afternoon, Smith said as much when he encouraged “everyone to read it in full to understand the scope and the gravity of the crimes charged.”
For starters, the indictment contains a lengthy set of factual allegations that seem intended to demonstrate just how irresponsible Trump’s handling of the documents was — complete with pictures of boxes of classified documents being stored in a bathroom — and how elaborate his efforts to stonewall federal investigators were.
The lead charges are 31 counts concerning Trump’s alleged willful retention of national defense information, with each count tied to a specific document. That alone appears to reflect a charging strategy designed to place the significance of the material that Trump retained at the center of the case and public discourse. (There were likely simpler and frankly more lenient ways to charge the case, but Smith and his colleagues appear to have been uninterested in going easy on Trump.)
The description of those 31 documents in the indictment also includes the classification designations on the documents, which in almost every case were Secret or Top Secret. The lone exception is an eyebrow-raising item that is described as an unmarked and “[u]ndated document concerning military contingency planning of the United States.” The descriptions of other documents include references to material drawn from intelligence briefings and the military activities and capabilities of foreign countries. The purpose of all this detail seems, at least in part, to be to take direct aim at Trump and his allies’ efforts to downplay the sensitivity of the material that he kept and repeatedly refused to return to the government.
In short, the indictment is both a critical and historic legal document as well as a document with a conspicuous public message embedded in it — one designed to communicate to Americans how seriously prosecutors view the alleged conduct, and how different their view of the situation is from Trump and his political allies’ self-serving claims about Trump being the victim of persecution at the hands of his political opponents.
There is no way to fully separate the politics from the law as the case moves forward. Trump’s best and simplest defense is to continue running for reelection and to win. Even setting a trial date — a relatively straightforward matter in the typical criminal case — will be complicated by the political calendar as long as Trump remains in the race.
There is one more way that this prosecution is unlike any other, and this is that as a former president and current presidential candidate, Trump has a truly unique ability to affect the proceeding through his public comments (provided that the presiding judge or his lawyers do not prevail upon him to stop talking about the case, which seems unlikely). There is virtually no way to insulate a jury from those statements, and all Trump has to do is persuade one person who ends up on the jury that the case is illegitimate and that person can then hang the jury — which would result in a mistrial and a major political mess for the Justice Department.
The intense coverage of Trump’s legal difficulties in recent years may have made last week’s indictment feel inevitable to many people, but an indictment is just the start of the process of a criminal prosecution — one that can take many twists and turns in an unusual case. This one is about as unusual as it gets along pretty much every conceivable dimension. As damning as the allegations in the indictment appear, we are a long way off from the end of this process, which will now be a central issue in the 2024 campaign. Trump, in a very real sense, is running for his life.
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