Trump cases pose risk
No matter how reprehensible Donald Trump’s actions as president may have been, obtaining a conviction of a former president in matters relating to the Jan. 6, 2021, assault on the U.S. Capitol, the Mar-a-Lago classified documents scandal and/or his finances is no slam dunk. As much as our political system and moral sense of justice demand we reaffirm that no one is above the law, prosecuting Trump is fraught with risk.
Former prosecutor Andrew Weissmann noted as much in his Feb. 3 Post book review of “People vs. Donald Trump: An Inside Account,” by Mark Pomerantz, the former lead investigator into Trump’s finances in the Manhattan district attorney’s office. As Weissmann writes, the decision by District Attorney Alvin Bragg “not to pull the trigger in February 2022 on a case against Trump — which was widely criticized in the press — actually may have been courageous, not cowardly or inept, since he hardly had anything to gain and a lot to lose politically by the decision.” That’s true to some extent in this and every Trump case.
Whether it is meeting the requisite requirement of criminal intent, or sustaining the credibility of cooperating witnesses who may have vulnerabilities, or ensuring biased jurors get screened out in jury selection — the challenge of proving guilt beyond a reasonable doubt cannot be minimized.
“Some have the view that if you shoot for the king, you best not miss, and that an acquittal would rend the fabric of the country, perhaps irreparably,” Weissmann writes. “Pomerantz eloquently lays out the counterargument: that a president should be held to at least the same standard as anyone else and that the rule of law demands it, even if a conviction is far from certain.”
Some of the Trump investigations would certainly seem to have a clearer path to conviction than others. In the Georgia criminal investigation of his meddling regarding the 2020 election results, the facts (including a voice recording of Trump pleading to find just enough votes to flip the election) are compelling and easily understood. Fulton County District Attorney Fani Willis has a slew of compelling witnesses with no suspect motives (e.g., Secretary of State Brad Raffensperger). She also will have the benefit of a Fulton County jury pool.
Complications might arise in Georgia and not every charge (state racketeering charges, for example) would be simple to explain to jurors and neatly fit the facts. But if you had to pick a 2020 election case with a low risk of failure and a high probability of success, you would be hard-pressed to come up with a better one than this.
That does not necessarily hold true, however, in every Trump investigation. For example, proving that Trump, beyond a reasonable doubt, had specific knowledge that his hush payment to porn star Stormy Daniels was falsely reflected on business documents would not be simple. (In a criminal case, Trump’s invoking the Fifth Amendment — as he did hundreds of times in New York’s investigation of his company’s finances — would not be admissible.) Proving Trump personally and deliberately inflated asset values turns on the evidence.
Likewise, in the Mar-a-Lago classified documents investigation, the underlying statute, the Espionage Act, would require a finding that Trump willfully retained, and failed to deliver upon request, information “relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
You can imagine the defenses. (Well, it all got back to the government, right?) Moreover, the prosecution would need to be concerned that the public (and, in turn, any jury) might not grasp why the prolonged return of documents is indictable for some officials and not others.
In such a case, the prosecution might well want to stick not to the potential underlying crime but to the willful obstruction and lying that distinguish Trump’s conduct from other cases. There are many cases in which prosecutors forgo the underlying crime to focus on the “process crime.” In the case of I. Lewis “Scooter” Libby, there was no charge relating to disclosure of classified material (i.e., “outing” CIA officer Valerie Plame); he was only charged with and convicted (later pardoned) for lying to investigators, perjury and obstructing justice in a grand jury investigation.
While the underlying securities fraud charge against Martha Stewart was tossed out, she was still convicted in 2004 of obstruction and lying to investigators. (A 2018 Brookings report also points to a slew of federal cases in which prosecutors gained convictions on obstruction charges relating to an investigation of conduct that was nevertheless not illegal.)
Special counsel Jack Smith will need to undertake the same sort of fine-tooth examination of potential charges regarding federal Jan. 6-related crimes. Some (e.g., obstruction of an official proceeding) may have a higher probability of success than others (e.g., seditious conspiracy, which requires a finding Trump intended to use violence to stop Congress from counting electoral votes).
In sum, the public’s desire for Trump to be held accountable is not sufficient reason to file every possible criminal case against him. The essence of prosecutorial discretion is determining, based on the facts and law, which prosecutions will serve the interests of justice, leading to a conviction that can be sustained on appeal. In other words, not every failure to bring every charge is a failure of nerve; sometimes it’s a matter of smart lawyering.