Home Politics The Four Trump Criminal Cases: Strengths and Weaknesses

The Four Trump Criminal Cases: Strengths and Weaknesses

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The Four Trump Criminal Cases: Strengths and Weaknesses

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The indictment of former President Donald J. Trump in Georgia related to accusations that he tried to subvert the 2020 presidential election there means he now faces four separate criminal cases — even as he is the front-runner for the Republican nomination for the White House.

In total, Mr. Trump faces 91 felony counts, charged with an array of crimes: trying to subvert democracy, risking national security secrets and falsifying business records in connection with a hush money payment to a porn actress.

Mr. Trump’s growing tangle of legal problems complicates an already busy campaign calendar, but also raises the question of how each trial will proceed and which will go first. While some prosecutors have signaled they intend to move quickly, Mr. Trump’s lawyers have often pursued a strategy of delay, seeking to run out the clock on legal matters.

Here is a closer look at each case and how they compare.

Venue: New York State legal system, Supreme Court in Manhattan

Judge: Juan Merchan

Chief prosecutor: Alvin L. Bragg, Manhattan district attorney

Charges: Mr. Trump has been charged with 34 felony counts of falsifying business records related to a series of Trump Organization checks he signed in 2017 to his personal lawyer and fixer, Michael Cohen. The payments were to reimburse Mr. Cohen for a hush money payoff he had made in October 2016 to a porn actress, Stormy Daniels, to cover up a potential sex scandal just before the election. But, according to the indictment, internal documents falsely recorded the checks as payments for legal work Mr. Cohen had purportedly performed in 2017 under a retainer that did not exist.

Indictment: March 2023

Scheduled trial: March 2024

What to know: This case — the first criminal indictment against Mr. Trump or any former president in American history — is generally considered to be the least significant of the four.

It also carries some legal risks because bookkeeping fraud is normally charged as a misdemeanor. For it to rise to a felony, prosecutors must show that a defendant intended to commit, aid or conceal another crime — even if they do not charge the defendant with that other offense. Much of the discussion about the case has centered on the strength and weaknesses of potential theories for what the second crime could be, which Mr. Bragg did not specify in the indictment.

In statements in court and to reporters on the day of Mr. Trump’s arraignment, prosecutors suggested, in part, that both federal and state election laws could serve as the potential second crime. The idea appears to be that the payoff to Ms. Daniels was a campaign expenditure. If so, the Trump campaign violated a legal requirement to report it in Federal Election Commission filings, and Mr. Cohen’s payment to her was effectively a loan to the campaign that violated individual contribution limits.

But using campaign finance laws raises challenges. It can be ambiguous whether paying off a paramour is a campaign expenditure or a personal one. Also, it is untested whether a state prosecutor can invoke a federal election crime even though he lacks jurisdiction to charge it. Whether or why a New York election law would apply to a presidential election, which is governed by federal laws that generally supersede state laws, is also unclear.

Still, state prosecutors also suggested a different — and potentially much sturdier — second theory for what the second crime could be: that Mr. Trump had falsified business records to deceive state tax authorities. That theory does not raise the same complexities about the interplay between state and federal law.

Venue: Federal legal system, Southern District of Florida

Judge: Aileen M. Cannon

Chief prosecutor: Jack Smith, special counsel

Charges: Mr. Trump has been charged with 40 criminal counts related to accusations that he hoarded sensitive government records after leaving office and conspired to obstruct government efforts to retrieve them, including by defying a subpoena. Two of his employees, Walt Nauta and Carlos De Oliveira, face charges related to conspiring to obstruct the investigation and of making false statements.

Indictment: June 2023, expanded July 2023

Scheduled trial: May 2024

What to know: This case, the second to be charged against Mr. Trump, may be the strongest of the four — at least on paper. The allegations against Mr. Trump are relatively straightforward, and the indictment cites an abundance of concrete evidence to support them. The charges are not novel applications of laws that raise untested issues, but rather statutes that have been invoked in this way many times — albeit not against such a high-profile defendant.

But the case may pose greater risk to prosecutors and offer greater reasons for hope to Mr. Trump for other reasons. For one, it was randomly assigned to Judge Cannon, a Trump appointee who last year showed him unusual favor by interfering with the investigation after the search of Mar-a-Lago until a conservative appeals court reversed her. She will hold significant influence over the shape and trajectory of the case.

For another, the jury is expected to be drawn from the five counties in the Fort Pierce division of Florida’s Southern District. Mr. Trump won a majority of the votes in all five of them, increasing the chances that jurors will be sympathetic to him. To convict, prosecutors need a unanimous verdict from all 12 jurors; to achieve a mistrial, Mr. Trump just needs one holdout.

As with the other federal case against him, Mr. Trump is likely to pursue a strategy of trying to delay the case beyond the current trial date. If he or another Republican wins the 2024 election and it is still pending — even on appeal — the next president could use his power over the Justice Department to shut it down. The role of classified evidence in the case may offer an opportunity for many pretrial fights that could create such opportunities.

A final takeaway: In public statements, Mr. Trump has insisted that he somehow declassified everything he took with him, but in the courtroom, this defense may not work very well. No credible evidence has emerged to back that claim, and it also appears to be undercut by an audio recording prosecutors obtained of Mr. Trump from after he left office, in which he is heard discussing a document that he said was still secret and that he no longer had the power to declassify. And under the Espionage Act, prosecutors do not need to show that a mishandled national security document was technically still deemed classified so long as the government is keeping it closely held.

Venue: Federal legal system, District of Columbia

Judge: Tanya S. Chutkan

Chief prosecutor: Jack Smith, special counsel

Charges: Mr. Trump has been charged with four criminal counts related to accusations that he sought to subvert American democracy by trying to overturn his 2020 election loss to Joseph R. Biden Jr. The indictment charges him with one count each of conspiring to defraud the government and to disenfranchise voters, and two counts related to corruptly obstructing an official proceeding — the Jan. 6, 2021, joint session of Congress to count and certify Mr. Biden’s Electoral College victory.

Indictment: August 2023

Scheduled trial: To be determined. Prosecutors have proposed January 2024. Mr. Trump has indicated he wants a delay until after the 2024 election, although his lawyers have not yet filed a formal proposal.

What to know: Because the case centers on an attack on the core process of American democracy, it is widely considered the most significant of the four. But it is much more complicated than the documents case, and certain legal and factual ambiguities will likely provide openings to Mr. Trump’s defense team.

The criminal laws cited in the indictment have never been applied to this situation — circumstances, of course, that have never arisen. Each of them carries complexities. That is perhaps why Mr. Smith charged the same story three different ways, creating redundant paths to potentially achieving a conviction that would stand up on appeal.

While the indictment is sprawling, it is also selective. It focuses on the plot by Mr. Trump and his allies in multiple states won by Mr. Biden to recruit slates of false electors and then to pressure Vice President Mike Pence, in his role as president of the Senate, to cite their existence to disrupt the certification of Mr. Biden’s victory. These events, Mr. Smith said, were at once conspiracies to commit fraud, disenfranchise voters and obstruct an official proceeding.

An important part of the trial will be whether prosecutors can prove that Mr. Trump had the requisite criminal intent. But a common assertion — that if he truly believed his baseless claims about voter fraud and that he had won the election, he would be not guilty — is oversimplified. While it would clearly be easier to convict if the jury thinks Mr. Trump knew he was lying, ordinary Jan. 6 rioters have already tried to get off by saying they genuinely believed the election had been stolen and that has not worked.

Judges have ruled that corrupt intent can be inferred by the fact that the rioters committed other crimes, like trespassing, destroying property and assaulting the police, regardless of their underlying motives. While Mr. Trump did not storm the Capitol, of course, the other crimes he is accused of committing along the way would seem to function in the same way. Under criminal conspiracy law, moreover, prosecutors can show he had the requisite intent for the other two counts — fraud and voter disenfranchisement — simply by pointing to acts of deceit or dishonesty even if those were not crimes in and of themselves.

Mr. Trump’s lawyers have signaled that they intend to argue that their client’s First Amendment rights are at stake. Notably, the indictment opens with a preamble that sounds like an opening statement at trial, acknowledging that the president had a right to file lawsuits challenging the election outcome and to say whatever he wanted about it — even to lie to the public. Mr. Smith sought to distinguish that from other illegal conduct he accused Mr. Trump of committing. But the line can be murky. The indictment is suffused with Mr. Trump’s false public statements about the election, and Mr. Smith called them integral to what he portrayed as Mr. Trump’s criminal plans.

Just as notably, Mr. Smith did not charge Mr. Trump with incitement or a seditious conspiracy, both charges that had been recommended by the House committee that separately investigated Mr. Trump’s attempts to overturn the election. The indictment also omitted large amounts of evidence cited in the House report about the specifics of the violent events of Jan. 6, when Mr. Trump delivered an inflammatory speech and his supporters morphed into a mob and attacked the Capitol. By staying away from those issues, Mr. Smith avoided entanglement with tough First Amendment objections that defense lawyers could raise about his speech that day.

Also significant is that the indictment identifies six people as Mr. Trump’s co-conspirators yet does not charge any of them. (They remain unnamed, but their described actions appear to correspond with Rudolph W. Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro, and Boris Epshteyn.) It is an open question whether Mr. Smith intends to charge them later if they do not decide to cooperate, or if he has made a strategic choice to focus on Mr. Trump to increase the chances of getting to trial well before the election.

In some ways, this case inverts the strengths and weaknesses of the documents one in Florida. Unlike the straightforward documents case, the election interference one relies on novel applications of laws and more complex and, in places, ambiguous facts. But the election case was randomly assigned to Judge Chutkan, an Obama appointee who previously ruled against Mr. Trump when he tried to block the House Jan. 6 committee from obtaining his White House papers and who has been particularly tough when sentencing Jan. 6 rioters. The jury pool will be drawn from the District of Columbia, which is heavily Democratic.

Venue: Georgia State legal system, Atlanta

Judge: Scott McAfee

Chief prosecutor: Fani T. Willis, Fulton County district attorney

Charges: Mr. Trump is charged with 13 criminal counts related to accusations that he illegally sought to subvert his narrow loss to Mr. Biden in Georgia. The charges include racketeering, solicitation of violation of oath by a public officer, filing a false document, and conspiracies to commit impersonation of a public officer, make false statements, file false documents and commit forgery.

Eighteen of Mr. Trump’s associates and allies also face various charges.

Indictment: August 2023

Scheduled trial: Not yet set.

What to know: This was the last case to be charged against Mr. Trump. It overlaps with a subset of the actions already charged in the federal indictment and raises some of the same issues, including the possibility that the former president will try to raise First Amendment objections to the indictment’s characterization of some of his public statements as overt acts in furtherance of a criminal conspiracy.

At the same time, the Georgia indictment charges different crimes — state-law offenses — and is substantively different in several ways. For one, Ms. Willis obtained grand jury indictments of 18 Trump allies who assisted him in his efforts to overturn the election, while Mr. Smith to date has not brought charges against any accused co-conspirators despite identifying six people as such.

For another, even in a situation in which Mr. Trump or another Republican is elected president, shuts down the federal case, and pardons Mr. Trump and his associates, a president lacks legal authority to similarly disrupt a criminal case being brought under state law.

Ms. Willis structured her case under Georgia’s Racketeer Influenced and Corrupt Organizations Act. So-called RICO laws are tools that were developed to make it easier to go after organized criminal enterprises and can be used against members of any group that engaged in a pattern of criminal activities with a common purpose. A racketeering conviction carries a minimum sentence of at least five years.

To convict Mr. Trump under the RICO law, Section 16-14-4, prosecutors would need to show that as part of his efforts with associates to overturn Georgia’s election results, he conspired with others or engaged in two or more offenses from a list of several dozen. Most of those offenses are violent crimes but include acts like solicitation, forgery and making materially false statements to state officials. The former president and his allies are also charged with several conspiracies to commit such offenses.

There may be various challenges to getting this case to trial quickly. It was the final case to be charged, and while there is no rule that trials must proceed in the order of indictments, the calendar is already crowded. Moreover, any case with 19 defendants is a complex matter in which defendants will raise their own issues; notably, many of Mr. Trump’s co-defendants are lawyers who provided legal services or advice, and will doubtless file many challenges that could slow down matters.

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