The 37-count indictment of Donald Trump is so damning and so meticulously documented with references to conversations with his own lawyers, video recordings, text messages, taped conversations, and the 45th president’s own words about the sanctity of classified documents that were the client not Mr. Mar-a-Lago, any lawyer would advise copping a plea.
In the indictment, Trump’s own lawyers confirm his intent to obstruct justice. The government seized the documents from him after he hid them from his lawyers and had them certify that he didn’t have them. This is not a case that relies on hair-splitting. Even Bill Barr said, “If even half of it is true, he’s toast.”
It’s rare, but a lawyer can paint a target on his client’s back. Five counts in the 37-count indictment refer to attorney-client communications about the subpoena for classified documents that Trump stored at his Florida home and resorts. One of the lawyers, M. Evan Corcoran, documented incriminating statements Trump made dictating into his iPhone. Trump told Corcoran, among other things, “I don’t want anyone looking through my boxes,” and “What happens if we don’t play ball with them?” Typically, communications between lawyer and client are confidential. Still, the crime-fraud exception applies when the client communicates with the lawyer about committing a crime. Beryl Howell, chief judge of the federal district court in Washington, D.C., ruled that Trump’s communications with Corcoran fell within the crime-fraud exception and were discoverable by the grand jury that issued the May 11 subpoena investigating the matter. Corcoran, who still represents Trump, will surely be a prosecution witness, which is never a good look for a defendant.
The way out for Trump is “no trial, no conviction.” Roy Cohn, the late mendacious red baiter and Trump attorney, believed in running out the clock, and that’s what Trump will try to do until after the election. Then, if a Republican is elected (either himself or someone else), he has an excellent shot at being pardoned, or, to the same effect, the new president will order the new attorney general to dismiss the charges.
Trump denounces the rule of law, and contends that the prosecution interferes with his constitutional right to run for office. He claims that Joe Biden, his presidential rival, engaged in selective prosecution. That claim doesn’t pass the laugh test. Biden isn’t leading the prosecution. Attorney General Merrick Garland appointed Jack Smith as special counsel to pursue the Mar-a-Lago cases. Democratic and Republican-appointed attorneys general regularly do this.
Trump will contend that the presiding judge must, in the public interest, postpone any trial until after the election, and he has many arguments for the delay. His lawyers will say they need time for motions and preliminary hearings on alleged prosecutorial misconduct, selective prosecution, and the crime-fraud exception. Then, there is the issue of whether the jury must see the 31 documents described in the indictment, which prosecutors carefully selected from 300 recovered from bathrooms and storerooms in Mar-a-Lago. These documents—which he stole from the White House, as well as harbored and concealed from investigators—are now back in the government’s possession, and Trump can waste time by arguing each highly classified document needs to be inspected by 12 lay Floridians for him to have a fair trial. It’s a plausible argument, and I count on him making it.
A judge determined to pursue expeditious resolution might deal speedily with these claims—rejecting them out of hand or quickly disposing of them. A determined jurist could start the trial before the year ends and the first New Hampshirite casts a ballot. A pro-Trump judge, or an unduly hesitant one, may defer to the defense and may, to Trump’s delight, consume undue time considering them.
Trump may have another get-out-of-jail-free card. So far, the case has been assigned to the Honorable Aileen M. Cannon, a Trump-appointed United States district judge who presided over proceedings following the search warrant executed last summer. In an unprecedented move, Cannon enjoined an ongoing criminal investigation. She assisted Trump’s strategy of running out the clock by appointing a special master to examine whether each document belonged to Trump or the government. Ominously, the 42-year-old judge argued that Trump was entitled to special deference because he was a former president. She was twice rebuked and reversed by the Eleventh Circuit Court of Appeals, which held that no one is above the law under our system.
The Chief Clerk of the Southern District of Florida has said that the case was “randomly assigned” to Judge Cannon, one of 26 district judges who might have caught the case. It is hard to believe, much less accept.
Special Counsel Jack Smith could have brought the case to the District of Columbia Court of Appeals because that was where Trump initially filched the classified documents. A federal grand jury issued two subpoenas covering the documents in April and June last year. The Sixth Amendment provides that a criminal case must be brought in the “state and district wherein the crime shall have been committed.”
Incontestably, the crime, if there is one, began in the District of Columbia, where it continued and was thereafter completed in Palm Beach, Florida. Under the law, the prosecution could have been brought in either place.
Smith gambled on Florida, where a venue motion is untenable, to avoid the delay involved in such a motion, knowing there was only a 1-in-26 chance he would land Cannon.
Federal trial judges have awesome power in criminal cases. Decisions such as the timing of motions, how long they are considered and decided, and fixing the date for the trial is discretionary and largely unreviewable by the appellate courts.
Smith has to be concerned about clock management. For starters, he may want to try to remove Cannon from the case for bias. By statute, a federal judge must recuse where their impartiality may “reasonably be questioned.” But, as we learned from watching the recent refusal of Justice Clarence Thomas to stay out of cases where Trump is a defendant, recusals from jurists are rare. And, if Cannon won’t recuse herself, the Eleventh Circuit is unlikely to reverse her. Usually, a judge’s courtroom behavior doesn’t form the basis for recusal. The “bias” necessary to warrant recusal must be a personal or non-judicial bias, such as a relationship to the parties or a financial interest in the outcome. Notably, the Eleventh Circuit has ordered “reassignment,” where judges lean so heavily for a defendant they call their objectivity in the eyes of the public into question. As that court stated in a 2006 case United States v. Martin:
Finally, based on our review of the record and the elements that this Court considers in determining whether to reassign a case to a different judge where there is no indication of actual bias… we have determined it wiser to remand this case with instructions to reassign it to a different judge… In light of the two reversals in this case and three other appeals in which we have reversed the same judge for extraordinary downward departures that were without a valid basis in the record, we find it likely that “the original judge would have difficulty putting his previous views and findings aside.”
Given Cannon’s “previous views and findings” in the Mar-a-Lago documents case, she should step aside. There is too much at stake for “equal justice under law” that neither her court nor the Eleventh Circuit should stand for the damage that would come from her remaining in the case. But all this will eat up time. Does Smith call a run or a pass? Legal experts expect that Cannon will keep the case.
The crimes alleged in the 49-page indictment are stern and familiar, refuting the bluster that the special counsel is weaponizing the justice system. (When you’ve lost Barr on that one…) Trump may have denounced what he calls a selective political prosecution, but Jack Smith put it neatly when he announced the indictment last week: “We have one set of laws in this country, and they apply to everyone.”
