"Lawfare" looks at the Trump indictment

“Lawfare” is the name of a blog that has waged it against Donald Trump relentlessly and often unfairly, for years. However, I found its summary and analysis of the Trump indictment helpful and mostly fair.

The authors acknowledge the perils of prosecuting a former president and leading presidential candidates in the context of the crimes he’s alleged to have committed:

[The indictment] is. . .the beginning of new era in American political life, one in which federal prosecutions of former presidents are—fortunately or unfortunately, as Trump might say—no longer either unthinkable or an eventuality to be avoided, either by prudential exercises of prosecutorial discretion (as in the case of Bill Clinton) or by preemptive exercises of the presidential power of clemency (as in the case of Richard Nixon).

If this case goes to trial, it will force Americans to think about these questions and others too. It will require the delicate handling of large volumes of classified material before a jury. It will raise questions about the limits of one of the most sacrosanct principles in our legal system, attorney-client privilege. It will push the ability of the criminal justice system to try a man while he seeks the very presidency whose prerogative of control over classified information he is accused of violating. And it will test Americans’ faith that a Justice Department under the control of one party can impartially and fairly try a former president of the other party even as he seeks to regain the presidency. 

Yes it will.

The authors also highlight some potential difficulties with the prosecutor’s case. Here’s one:

The prospect that one of Trump’s lead attorneys might be forced to testify against him—or that Corcoran’s voice recordings might be used to prosecute his client—promises one of the more sensational aspects of any ultimate criminal trial. But it may pose challenges for prosecutors as well.

While both a D.C. federal district court and the D.C. Circuit held that attorney client privilege was not a bar to producing these records to the grand jury, it’s not clear that their holdings—which remain under seal—reached the question of whether that same evidence would be admissible in a criminal trial. Perhaps more importantly, these holdings would not necessarily bind the district court in Florida or the Eleventh Circuit Court of Appeals. And absent this evidence, it may be harder for prosecutors to prove these [obstruction] violations.

That said, media reports indicate that investigators were also pursuing security camera footage and testimony from other Mar-a-Lago employees, which may prove sufficient for prosecutors to make their case even without Corcoran’s statements.

There’s also the fact that this case has been assigned, at least for now, to Judge Aileen Cannon, a Trump appointee who last year controversially appointed a special master to oversee the handling of classified documents seized during the FBI’s search of Mar-a-Lago. She also enjoined the government from reviewing the seized documents for “investigative purposes.” The Eleventh Circuit partially stayed her decision and later vacated it entirely.

The authors write:

However Cannon ended up assigned to the case, it is unclear whether she will remain on board past the arraignment—and, if she does, what impact her assignment might have on the case. For now, Judge Cannon’s history with the case might reasonably lead one to conclude that her assignment is a disaster for the special counsel and a boon for Trump.

But Cannon, a former prosecutor, is no stranger to criminal trials. Nor is the forthcoming criminal trial likely to implicate the same unusual circumstances and consideration of open-ended equitable principles as the debate over the special master did, at least in her view. And it remains to be seen whether the sharp rebuke she received from a panel of her colleagues on the Eleventh Circuit—each appointed by Republican Presidents—has tempered her apparent inclination to mangle the law in favor of the former President. 

Although I’ve always considered Judge Cannon’s ruling erroneous, I wouldn’t say she “mangled” the law in favor of Trump. She simply erred.

I hope she is still assigned to the case when it goes to trial. Here’s why.

If Trump is convicted, the public will be more likely to accept the verdict if (as will be the case) the matter is tried in South Florida rather than Washington, D.C. and before a judge appointed by Trump. It’s true, of course, that Trump’s hardcore followers won’t accept a guilty verdict no matter what. But such a verdict will have wider acceptance if a judge appointed by Trump who has already made a controversial ruling in his favor in this matter presides over the trial.

Of course, a not-guilty verdict delivered in this scenario won’t be accepted by many in the anti-Trump crowd. But I’m less worried about the consequences for our society that would flow from non-acceptance of a not-guilty verdict than I am about these kinds of consequences if a jury finds Trump guilty of the crimes alleged.

Having read the indictment, I’ve come around to the view that Trump should be tried for the offenses he’s alleged to have committed. But given the perils of such a trial, I view a South Florida jury and a Trump-appointed judge as guardrails, in a sense, for this fraught process.