March 30, 2023 will forever be known in history as the day a former United States president was indicted by a New York grand jury on criminal charges. As of this writing we don’t know what Donald Trump has been charged with, but according to published reports the indictment contains thirty separate counts.
Based on reports published prior to the indictment, the basis for the criminal charges is the payment of hush money to two porn “stars” to ensure their silence in the weeks running up to the 2016 presidential election. Evidently the payments worked. No mention of these transactions was made prior to the election, or the inauguration in January 2017 for that matter. While paying someone for their silence is not necessarily illegal, the purpose for the payments, where the money came from, how they appear on personal/corporate/campaign records may well be.
If there really are 30 counts in the indictment, I will predict that one will be a conspiracy count. It seems impossible that Trump could have performed or ordered the acts contained in the indictment. But then maybe I don’t give Trump’s intellect enough credit.
As we know, this news wasn’t well received by the King of Mar a Lago, or his retinue. Cries of “persecution,” “witch hunt,” and election interference filled social media. Never one to squander a money making opportunity, Trump pulled in a cool $4 million within a day the indictment was submitted to the court.
Trump, as is his wont, especially from a safe distance, went on the attack against the prosecutor and - if you still think this guy is a stable genius - the judge. He has used a variety of racial tropes directed toward the prosecutor, particularly the charge that he was bought and paid for by George Soros. It’s a brilliant combination of racism and anti-semitism that no doubt is the envy of white nationalists everywhere.
Trump also leveled charges of bias against the judge, claiming that he “hates” Trump. As any nine-year old will tell you, that’s pretty weak sauce. But calling out the judge prior to arraignment is…a strategy, I guess.
Pro Tip for Donald Trump: never, ever, go out of your way to piss off the judge presiding over your trial.
So here we are, the other side of the looking glass where the Mad Hatter is under indictment. There will be no end to commentary on both sides of the political continuum. Bear in mind that nobody knows what’s in the indictment other than the fact of its existence.
But that hasn’t stopped the Trump Circus warming up their acts, complete with a series of clowns performing for the MAGA masses, in an attempt to distract and deflect attention away from what actually happens in the courtroom.
We do know that Trump will appear in New York for arraignment, reportedly on Tuesday, April 4. We can assume he’ll plead not guilty to the counts contained in the indictment and will walk out of the courtroom either after posting bond or on his own personal recognizance.
All of this is normal.
And the procedure that will unfold over the coming months will also be normal, unless the Trump Show makes an appearance. If that happens, look for the court to enforce existing rules and restore an orderly procedure. This too is normal.
Looking forward, it’s likely that this will not be the last indictment. As the coming months unfold we might see other indictments at both the state and federal levels. So with the basis of certitude of any talking head on your favorite media, let me try to provide some perspective to what has happened and what may be next.
Reaction to the First Indictment - to hear Trump supporters, their guy is facing hard time in Sing Sing or Attica. Nothing is more absurd. If found guilty, he would pay a (probably heavy) fine. If he his acquitted he returns to Florida or resumes campaigning for president. Either way he will not spend one nanosecond in a jail.
Attacks on the prosecutor and judge, especially the judge, are often not well received. Jury intimidation will be met with a forceful response. If Trump continues to gin up his base, expect the judge to act. It’s not partisan or personal, it’s ensuring the safety of all involved in this proceeding and to ensure the due process rights of the prosecutor and defense. Both sides are entitled to a fair trial.
Now that the indictment has been issued, look forward to the seemingly glacial pace of the pretrial process before we get to the actual trial. This is normal. Some criminal defendants press for a speedy trial as a tactic to catch the prosecutor before her case is fully developed. I doubt that tactic will be used here as the prosecutor has spent over a year developing the case. Look for Trump to use every means at his disposal to get a delay and thus elongate the process. Maybe, but unlikely, he’ll be able get the trial past Election Day in November 2024. If that were to happen, and Trump in some cosmic joke was elected, then we’re really through the looking glass.
[As an aside, and more sauce for the goose, the New York Attorney General has brought a case against Trump and his two sons, wannabes Uday and Qusay, for fraud. There is no threat of incarceration if they lose, the threat is directly focused on their wallets, assets, and bank accounts. Reportedly, Trump will be back in New York on April 11 to sit for a deposition where he will likely display his renowned lack of memory about anything pertinent to the offense.]
What’s Next? - Now that the legal, political, and historical ice is broken, can we expect a snake line of criminal cases to rapidly be brought against Trump? Who knows? Unlike the New York cases, which recall took over a year in spite of generally probative inculpatory evidence, these remaining cases, based on the “evidence” publicly reported, tend to be more complex.
Georgia - Fulton County District Attorney Fani Willis is in the process of presenting evidence of election inference to a charging grand jury. You may think she already finished with the grand jury and you’d be right - sort of.
Georgia has an interesting grand jury process. First, a prosecutor submits evidence to an “investigating” grand jury, which at the conclusion of the process issues it’s report to the District Attorney. If the report finds that there is a reasonable belief (i.e. more probable than not) that a crime has been committed by a specific individual, the prosecutor presents her evidence to a second “charging“ grand jury.
We’re waiting for that second grand jury to conclude its work. Again, the standard is a reasonable belief that a crime was committed by a specific person or persons.
We do “know” from published reports and interviews (some a little entertaining) that the first grand jury referred charges and individuals to the D.A. We also know that there are three recorded phone calls between Trump and Georgia election and elected officials. All Trump wanted was that 11,780 votes be found that would award him the state’s electoral votes. Now, was that too much to ask?
Like any prosecutorial decision to seek an indictment is the question whether there is sufficient evidence for a jury to find guilt beyond a reasonable doubt that a defendant committed a crime. And that the prosecutor would prevail upon (expected) appeal. This is obviously a much higher standard of proof.
Each crime contains elements that a prosecutor must prove in order to obtain a conviction. For example, is the evidence beyond a reasonable doubt that the defendant intended to commit a criminal act? Did he act in furtherance of his criminal scheme? And whether there was a causation between the defendant’s acts and a criminal goal.
For clarity, assume I want to commit a robbery. Did I have the intent (mens rea) to steal money? Did I commit an act (actus reas) to further my intent such as purchasing a gun? And is there a causation between me walking into a bank brandishing my pistol and relieving the bank of some money? In order to convict me, a prosecutor would have to prove each element of the relevant statute(s) beyond a reasonable doubt.
From this brief explanation of the process, it’s clear that in a case as sensitive as the case being examined in Georgia takes time to make a determination about whether to proceed. That’s the challenge for D.A. Willis, and that’s the challenge confronting Special Counsel Jack Smith.
Mar a Lago - as far as we know, this isn’t Jack Smith‘s case. However, it’s not impossible not to foresee this being part of Smith’s investigation into the insurrection on January 6, 2021.
That said, like the New York case, this involves a relatively “minor” issue, in this instance impermissibly retaining government documents. However, when we see that 100 of these documents were plainly marked “classified,” this ups the ante.
And when we see that for eighteen months Trump basically stonewalled the government regarding the documents’ return, and that he stonewalled to such an extent that the FBI had to serve a warrant to search the premises, and upon that search 100s more documents were discovered, it seems that there‘s sufficient evidence to charge Trump with one or more crimes.
But what crimes? The retention of the documents in clear violation of the Presidential Records Act seems a no brainer. However, did he legitimately have a belief that he was permitted to possess these documents? Did members of his staff, of their own volition, misrepresent in writing that there were no additional documents held by Trump? Or were they told to do so and if so, by whom?
And what did he do with the documents? Did he show the classified documents to another person unauthorized to see them in violation of the Espionage Act? These are issues that need to be developed before any charging decision is made.
Investigations take time…and patience.
January 6, 2021 - I won’t waste time commenting on all that we don’t know. If there is such a thing, this investigation is in Smith’s legal black hole. Commenting on what we do “know” it’s clear that this is a complicated nuanced case. The January 6th Committee’s Report is damning to many, but in itself is not legal proof of anything.
For two years, between the investigation by the Department of Justice and the House Joint Committee there is ample evidence of - what? We don’t know. Given the statutory elements the must proved beyond a reasonable doubt relative to each defendant (if any), compared to the legal checkers game being played by D.A. Bragg, Smith is playing tri-level chess.
And let’s not forget the overt political component and the impact a case might have on our democracy and rule of law, I’m content to be patient and let the (sometimes maddeningly slow) legal process lumber along to its conclusion. I’d rather that Smith and his team get it right than I am in getting it fast.
If I wanted fast, I’d watch reruns of Jack McCoy in “Law & Order.”
A Two Tiered Justice System
Trump and his sycophantic chorus, aside from complaining about witch hunts and weaponization of the rule of law, have have claimed that his prosecution (“persecution?”) by the authorities evidences a two tiered system of Justice.
It pains me to say this but Trump is …right. Ouch, that’s going to leave a psychic scar, and after this month I don’t need any more scars! My saving grace from having to endure years of therapy is that he’s wrong about where the tiers are.
He claims (and as expressed by his wannabe Roy Cohn attorney) that if he was John Doe and entered into a hush money agreement, there’d be no prosecution. But because he is who he is, a conservative (authoritarian white nationalist fascist) candidate for president he is targeted by the authorities.
He ignores that he’ll have all the benefits afforded to him under law: he’ll have an attorney to represent him as he navigates the labyrinthian system of Justice, and he’ll be able to challenge to prosecution’s evidence and present exculpatory evidence of his own. He can and will participate in jury selection.
And, after all is said and done, a jury may find … brace yourself … Trump to be not guilty. The system will have worked. The rule of law will be vindicated.
The real two tiered system is between most of us and the low income defendants. They can’t afford an attorney but in criminal matters, if the defendant qualifies, he can be represented by a public defender.
But if you’re a poor person in court in a civil matter, you get nothing as of right. You either rely on the kindness of others or limited availability of lawyers through legal aid or the legal services corporation. Absent that, the civil defendant is on his own.
I have written about this in detail in previous posts on this blog. Look at any of the Access to Justice posts the see what I mean. For a rich child of privilege, self absorbed and self entitled, narcissist to complain that he is victim to a two tiered legal system is nothing less than a slur on the millions without his resources and advantages who, too often, have to navigate the legal labyrinth on their own.
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