Below is my column in the Hill on the difficult schedule facing Special Counsel Jack Smith in the prosecution of former President Donald Trump. He is also facing a greater problem of public perception. While critics often speak hopefully of “Trump fatigue” among voters, prosecutors are dealing with a Justice fatigue. A new poll shows that less than a majority of citizens believe Trump was correctly charged. An ABC/Ipsos poll found that 48% of Americans think Trump was rightfully charged while 35% do not think he should have been indicted. Another 17% was unsure. Prosecutors were likely hoping for more than a plurality given the details of the indictment. Worse yet, according to the poll, 47% of Americans think the charges against Trump are politically motivated. These polls indicate that Smith is not exactly singing to an empty room . . . but it is far from full.
Here is the column:
In his public statement following the release of the 44-page indictment against former President Donald Trump, Special Counsel Jack Smith gave the rote declaration of ethical and nonpolitical conduct by his team. But one line stood out: “My office will seek a speedy trial on this matter.”
Smith is not just a man on a mission; he’s also a man on a deadline. Every criminal defendant is entitled to a speedy trial under the Sixth Amendment. Under the federal law, a speedy trial would start within roughly two months.
There is a reason Smith would love to see an August trial. If the litigation pushed the trial within a few months of the election, most judges would delay it until after Nov. 5, 2024. That would mean that Trump could avoid a conviction and, if elected, he could give himself a prospective pardon. That would mean that there would be no judgment against him.
Smith knows that the Sixth Amendment is designed to help defendants, not prosecutors. Moreover, defendants routinely waive their right to a speedy trial because they need time.
Trump needs time in a bad way, and his lawyers would be insane not to waive. In fact, Trump just lost two more lawyers on the day of the indictment’s release.
More importantly, this indictment is a heart attack on a plate. The team has much to do after the hyperventilation passes.
The problem for the defense is that it must run the table on all 37 counts. The government clearly count-stacked to maximize the chances of a conviction. With a 76-year-old client, the defense attorneys have to play a perfect game. Even one conviction on these counts could bring a sentence of 10 to 12 years.
Moreover, the indictment is full of legal jump-scares in the form of pictures and transcripts. Like most people, jurors are visual creatures. Pictures of potentially classified documents being stored next to the commode will leave a lasting impression.
Most damaging is the audiotape that is transcribed in the indictment. On the tape, Trump tells two individuals interviewing him for a book that he has a classified Department of Defense document regarding an attack on Iran. Trump admits that it is secret and “as president, I could have declassified, but now I can’t.”
This is damaging on various levels. For one thing, it contradicts his prior claims to have declassified all of the documents. It also suggests that the government has a motive for trial.
Although many pundits bizarrely claimed that Trump was intending to sell classified material, the government suggests a more straightforward motive: The documents were trophies for Trump. The indictment portrays him as bragging about his possession of the attack plan.
For almost two years, I have written that the most serious threat against Trump would come out of Mar-a-Lago. That torpedo has now hit. Trump’s team is fooling itself if it does not recognize that this has caused damage below the waterline.
All indictments tend to diminish with time and adversarial process. As of this writing, we have not heard yet from the defense on these allegations. However, the indictment is full of quotes from lawyers and others made under oath or to federal investigators. If false, either would be grounds for criminal charges.
It could also get worse. Trump’s aide, Walt Nauta, has also been charged. According to reports, the Justice Department pressured Nauta and his lawyer for him to flip as a government witness. Indeed, the defense has charged that prosecutor Jay Bratt suggested that the Justice Department might sink Nauta attorney Stanley Woodward’s application for a federal judgeship unless his client cooperates and changes his testimony.
This indictment is clearly designed to concentrate Nauta’s mind on cooperation. If he were to flip (as the person who allegedly moved or concealed these documents), Trump would face a potentially insurmountable case.
The problem for the Justice Department is that it has made itself unbelievable in the eyes of many in the public. After years of overt bias and targeting of Trump, polls show that the majority of Americans view the FBI as a politically compromised organization.
The use of this type of speaking or “talking” indictment is clearly directed more at the public than at the court or the defendant. The Justice Department usually prefers a bare-bones indictment, to withhold a full account of its evidence before it has to turn it over to the defense. Smith wanted to show the public that it can trust the government, despite its behavior over the last seven years, as shown most recently by the report of Special Counsel John Durham.
This is also the reason Smith turned this indictment into a virtual picture book for public consumption. The Justice Department has left little room for trust among many citizens, and Smith is hoping that these images can change that perspective.
But this indictment is likely to do better in the court of law than it does in the court of public opinion. Just as many have Trump fatigue, many also have DOJ fatigue. This is the third consecutive election in which Trump is being hounded by allegations of crimes. It was immediately preceded by a clear political prosecution in New York State. In other words, the DOJ may have long ago lost the room for this production.
That does not mean that Trump can face this deluge of 37 counts and come out dry. The odds favor the government in this type of case.
Yet the question is whether there will be a case to prosecute after November 2024. Indeed, whatever the merits of a self-pardon, Republican candidates are already indicating that they would also consider pardoning Trump themselves if they are elected.
That is why Trump may have a better chance running on this case than defending against it.