HOW TRUMP BEATS THE RAP AND GETS RE-ELECTED
FORMER PRESIDENT DONALD J. TRUMP HAS BEEN CHARGED WITH 38 FEDERAL FELONIES FOR BASICALLY STEALING TOP SECRET DOCUMENTS AND TRYING TO COVER IT UP. BUT HE’S HOLDING SEVERAL ACE CARDS THAT, IF HE PLAYS THEM RIGHT, COULD GET HIM ACQUITTED AND RE-ELECTED PRESIDENT.
Donald Trump arriving at his Trump Tower home in Manhattan, holding one of “His Boxes", Sept. 11, 2015. Photo credit: JB Nicholas.
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Donald J. Trump has been indicted for basically stealing Top Secret documents, including US military war plans, and trying to cover it up. Unlike the flimsy state charges filed against him by Manhattan District Attorney Alvin Bragg, the federal charges against Trump in a federal court in Florida are damning. The former president faces almost a decade in prison.
But Trump's holding Ace cards. If he plays them right, he could beat the case and get elected. It's not probable, but it is more than just possible. Here's why.
Trump appointed the federal judge that's been assigned to preside over his prosecution, Aileen Mercedes Cannon; he's the candidate-to-beat in the race for the Republican nomination in the 2024 presidential election; and, because Top Secret documents are the evidence against him, the Constitution's requirement for public trials "in all criminal prosecutions" presents difficult legal questions likely requiring a time-consuming trip to the Supreme Court to resolve.
Resolution of these questions will definitely delay Trump's trial—maybe even beyond the Nov. 2024 presidential election.
If Trump wins, he'll have the power to drop the charges against himself because he'll be able to select an Attorney General who'll do his bidding. Admittedly, that's an illegal nightmare scenario, but it's possible. Storming the Capital, on the day Congress met to certify the results of the 2020 election, was a illegal nightmare scenario too. That didn't stop it from happening. Underestimate Trump—and his allies—at your peril.
Spectators view Donald Trump on a screen inside Trump Tower as he announces his campaign for president on June 16, 2016. Photo Credit: JB Nicholas.
Trump reshaped the entire federal judiciary when he was president from 2016 until 2020. With the help of fellow Republicans in the Senate, Trump appointed 226 new federal judges. Three went to the Supreme Court where they created a 6-3 Conservative supermajority. Its decisions no longer represent the average American. They now manifest "average Republican" ideals, according to Politico .
53 of the judges Trump nominated and the Senate confirmed went to intermediate federal appellate courts. The courts, called the courts of appeals, sit just below the Supreme Court and hear direct appeals as of right from trial-level federal district courts. The courts of appeals are organized in 13 "circuits." Trump's appointees "flipped" three from leaning in an ideologically Liberal direction, to a Conservative one: the 2d, 3d and 11th circuits, Reuters reported.
The 11th Circuit covers Georgia, Alabama and, crucially, Florida. Trump appointed six of the court's 12 active, full-time judges.
The front-line, trial-level federal courts in the federal system are called district courts. Trump appointed 174 of the roughly 670 district judges currently serving. Cannon, the district judge assigned to preside over Trump's prosecution, is one of them. Before she became a judge, Cannon's experience with the criminal justice system lasted barely seven years, according to her Senate questionnaire. She worked as federal prosecutor from 2013 until her Nov. 2020 confirmation. Her most notable case involved identity fraud.
Now the 42-year-old mother of two has been tasked with presiding over the most important criminal prosecution our Nation has ever seen.
Like any judge presiding over any criminal prosecution, Judge Cannon has the power to directly or indirectly decide the outcome of the case against Trump. For example, she can delay Trump's prosecution by simply not deciding essential pretrial motions that have to be decided before a trial can happen. In Trump's case, if his trial doesn't happen before the November 2024 presidential election, it might never happen.
Even if Cannon doesn't delay Trump's prosecution until after the election, Special Prosecutor Jack Smith faces an extraordinary hurdle convicting Trump: maintaining the secrecy of the documents Trump's accused of stealing while presenting his case to a jury in open court. The Constitution's 6th Amendment explicitly requires "speedy and public trial" in "all criminal prosecutions." It also requires Trump "to be confronted with the witnesses against him."
That includes tangible physical evidence, if any, a witness testifies about.
Among other federal crimes, Trump is accused of "willfully retaining" documents "relating to the national defense." Specifically, he's alleged to have taken, without authorization, 31 Top Secret documents with him when he left the White House in 2021. The documents detail secret American war-plans, secret American weapons, secret American "nuclear programs" and sensitive American "vulnerabilities" to attack.
In order to convict Trump, prosecutors must present these Top Secret documents in open court. Smith must also allow Trump and his lawyers to at least review them, before trial, so that they can prepare a defense. To deal with precisely this situation and preserve the accused's rights federal courts have developed the "silent witness rule." It allows codes and summaries of secret documents to be substituted for the real thing in open court.
But the Supreme Court has never scrutinized the constitutionality of the silent witness rule and endorsed its use. Until it does, the silent witness rule is only an experimental legal procedure. And the lower federal courts that created the silent witness rule never applied it to a case with so many Top Secret documents. While it is possible some of the Top Secret documents Trump's accused of taking will be declassified before his trial, as national security legal blog Lawfare points out, it is not likely all or even most of them will be.
That puts Smith, the special prosecutor, in a tight spot: proceed and disclose some of the secrets Trump is charged with not properly protecting, or drop some of the charges. Congress has authorized special pretrial proceedings for cases like Trump's where classified documents are at issue, but invoking those procedures will eat up a lot of the clock as it ticks toward the 2024 election.
Simply stated, prosecutors face an extraordinary dilemma with no simple, fast answer.
Even if the case against Trump proceeds to a trial, Judge Cannon can direct its outcome in other ways.
For example, the Federal Rules of Criminal Procedure authorize all judges in criminal cases to dismiss charges against defendants if they find that the prosecution fails to prove facts that violate the law. If they do it at the close of the Prosecution's case, jeopardy attaches and a defendant cannot be retried.
Even if a jury convicts a defendant, the rules authorize federal judges to overrule the jury's decision and render a verdict of their own. A judge can also influence a jury through the wording of the legal "instruction" they give the jury before deliberations that guide their decision making process. The words a judge uses in jury instructions can almost dictate the outcome of a case.
Still, just because all these things can happen, doesn't mean they will. Federal courts usually work pretty good. The usually get it close enough to right.
But sometimes judges—even federal ones—stoop to straight-up judicial fuckery—as anyone old enough to remember the Supreme Court's politically-charged decision ending the 2000 presidential election knows. The controversial 5-4 decision, stopping the counting of votes, in Florida, handed victory to Republican George Bush over Democrat Al Gore.
If a south Florida jury convicts Trump and if Judge Cannon sentences the senior citizen to prison, Trump can still be president. Nothing in the Constitution prevents a felon from being elected and serving as president—even from a prison cell.
Meanwhile, Trump has raised $7 million dollars in campaign contributions since his indictment, Reuters reports. Nobody seems eager to vote for incumbent Joe Biden again: his approval rating is close to its lowest ever.
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Boxes allegedly containing Top Secret national security documents stored in the White and Gold Ballroom at former President Donald J. Trump’s Mar-a-Lago Club in 2021. Photo Credit: US Attorney’s Office.