One of the disadvantages of having to write a weekly column as opposed to a daily column is that by the time the column is published, it may be outdated. That is why I will not comment on the particulars of the charges against Trump. Right now, all we know is that Trump was indicted. People have been trying to guess what the charges are. However, it may end up being a fool’s errand.
I will just address the politics of the situation and what may follow in the process. Considering the investigations against Trump, to most people, this one seems the least significant, since it mainly relates to personal misconduct as opposed to conduct affecting the public. At first blush, it reminds me of the impeachment of Bill Clinton, which related to his conduct involving Monica Lewinsky. Clinton, like Trump, previously had been investigated by a special prosecutor. Like Trump’s two impeachments, the Senate did not sustain the articles of impeachment. Clinton did not get off scot-free; he had to give up his law license. However, it ended up helping Clinton politically and damaged the Republican Party.
Thus, if this is the only case of the four investigations and Trump is acquitted or convicted of a misdemeanor, then it will help him politically. However, I doubt that this will be the last one.
My expectation is that Trump will be indicted in Georgia and then in the District of Columbia by the Special Prosecutor for conduct relating to January 6, the process to overturn the election, and the documents that were taken to Mar-a-Lago.
Most people were surprised that the New York case went first. There is some logic to start with this case. One of the fears of charging a former president and a declared candidate is that his supporters will engage in violence. New York City has the resources and the experience of dealing with crowds that can become unruly. Also, Trump is unpopular in New York, so there is not going to be a great local uprising of support. Other jurisdictions that were worried about bringing charges because of possible violence may now be emboldened to proceed if the reaction to the New York case is nonviolent. Moreover, it is easier to be the second jurisdiction to indict a former president. It is harder to be the first.
One of the arguments by Trump and his supporters is that this is political. It would be naive to believe that district attorneys are never guided by political considerations. I would not deny that it may help DA Alvin Bragg politically in Manhattan, but at the end of the day, he has to obtain a conviction. That is the part of the process that those who call it political forget.
Cases are not tried in Congress or in the media. Cases are tried in courts. There are many safeguards for the rights of the defendants. Defense counsel can raise various arguments as to why the charges can be dismissed. For example, there may have been a problem with the procedure in the Grand Jury, or the evidence presented in the Grand Jury was insufficient to establish the crime charged.
Even if a judge denies a pre-trial motion for dismissal, a court can dismiss counts during the trial or after the verdict. Trump would also have his right to appeal.
Then there is the jury. Both parties are involved in selecting the jury, including questioning potential jurors. They can challenge the selection of a potential juror for cause. There is no limit to the number of potential jurors who can be excluded if the court determines that there is cause to not allow them on the jury. The defendant also has a number of challenges where they can object to having a juror seated even without cause. I would expect Trump’s counsel to try to get off the jury those with negative feelings about Trump.
New York has expanded its discovery in criminal cases so the defendant will be better prepared to have counsel defend his case.
At trial, Trump’s attorney can object to evidence being presented during the trial, cross-examine witnesses, present evidence including calling witnesses, and make opening and closing statements. Although the jury is supposed to abide by the evidence and the law, there could be jury nullification where although the evidence would establish that the defendant committed the crime beyond a reasonable doubt, the jury acquits.
I would also anticipate that the quality of Trump’s representation will be better than the average defendant. Unlike many defendants, for Trump, money is not an issue for obtaining counsel.
The bottom line is, even you believe that the district attorney overstepped his bounds by bringing these charges, there are safeguards in the system to protect the rights of the defendants including Trump. This is no show trial. People should sit tight and let the process play out instead of rushing to judgment.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
