Jurisprudence

What It Would Look Like to Put Trump on Trial (Literally) While He Runs for President

Trump speaks into a mic with U.S. flags behind him.
The former president announces a thing. USA TODAY NETWORK via Reuters Connect

On Tuesday, former President Donald Trump announced his candidacy for the Republican nomination for president in 2024. Isn’t this wildly early, you might ask? Yes, yes, it is—it’s the earliest presidential candidacy declaration for a non-incumbent major candidate in modern history.

The rushed nature of Trump’s announcement—coming also before we even know the final outcome of last week’s midterms—has raised speculation that Trump is announcing his bid only as a way to avoid prosecution. Indeed, there’s been reporting for months that Trump would try to use a candidacy to deter an indictment by the Department of Justice in the Mar-a-Lago case and other cases, hoping that Attorney General Merrick Garland would find such a prosecution too politically toxic and essentially give Trump a get-out-of-jail-free card.

Advertisement
Advertisement
Advertisement
Advertisement

But the situation presents a bit of a conundrum. As I’ve argued before, there are a lot—like, a lot, lot, lot—of legal issues, criminal and civil, that potentially stand in the way of Trump even making it to that first primary, which is more than 14 months away. It’s unclear how they are all going to shake out, but they should make this a far different primary campaign from the one Trump ran in 2015 and 2016, when he shocked the Republican establishment, split the field, and ultimately took the prize.

The thorniest among those legal issues stems from the August FBI search on his home at Mar-a-Lago—also the site of Tuesday’s announcement—which uncovered more than 100 classified documents Trump had taken from the White House and which his lawyers had claimed had been returned in response to a grand jury subpoena. Experts in classified document cases have been saying for months that there’s already more than enough public evidence available to indict Trump, particularly given the apparent obstruction of justice involved in the case.

Advertisement
Advertisement

“If Trump were anyone else, he would have already faced a likely indictment,” Bradley Moss, a leading private attorney in classified documents cases, told NBC News last week. Trump likely hasn’t been indicted yet only because of a DOJ policy against taking prosecutorial steps that might be seen as interfering in an election—it prohibits any interference in the 60 days leading up to any election, in this case the midterms. That midterm election, however, just ended. Which begs the question: What would it look like to prosecute Donald Trump now that the midterms are over and he is again a candidate for president?

Advertisement

Moss and I spoke back in August, shortly after the Mar-a-Lago search, and on Tuesday, prior to Trump’s announcement. What he described a possible Trump prosecution and trial looking like was surprisingly straightforward—despite Trump’s attempt to insist we are already in a general election season via the announcement.

Advertisement
Advertisement
Advertisement

“There are degrees to which we kind of know what this will look like, and then there are degrees to which we’ll be in uncharted territory,” he said. The way it would be unprecedented is fairly clear: Prosecuting a former president has never been done before, nor has a top presidential primary candidate (as Trump is now considered) been prosecuted. It could be a challenge to convince a jury to convict—no matter how damning the evidence—when some of those jurors may be his political supporters (or opponents). There is a challenge in achieving an impartial jury pool in a trial of someone who generates such strong opinions as Trump does. Moss points to the fact, though, that the famous—and infamous—are tried not infrequently in our justice system, and “generally speaking, juries do the job correctly.” But that’s skipping ahead.

Advertisement
Advertisement

Even as compiling a jury pool would be a unique challenge, that would come later. First, there’s a clear framework for how the early stages of such an indictment and trial would proceed. The government regularly successfully prosecutes cases involving the Espionage Act and obstruction of justice—two of the statutes cited in the warrant against the former president. “By and large, virtually every time the government actually brings an Espionage Act prosecution, they almost always win,” Moss told me. “It’s very difficult to beat back that kind of prosecution.”

Advertisement
Advertisement

But most people are not Donald Trump. His situation presents several thorny issues that will need to be sorted out in lengthy pretrial proceedings that are likely to involve extensive appeals. Among the first of those issues to be dealt with is where Trump will face trial: does the prosecution happen in Washington D.C., where a grand jury had been considering evidence and witness testimony about the apparently stolen documents, or in the Southern District of Florida, where the documents were discovered in Trump’s home?

Advertisement
Advertisement

“If an indictment is brought in D.C., it is axiomatic that Trump’s team would move to change the venue to South Florida,” Moss told me via email in September. Trump would prefer South Florida, hoping he’d find a more favorable jury pool—and possibly judge—in the heavily Republican area. The fight over jurisdiction itself could take months, depending on appeals. Trump, though, couldn’t delay forever. “Unlike civil proceedings, judges do try move quicker on rulings in these criminal cases,” Moss said. “They don’t like letting it sit too long.” Still, how long Trump is able to delay on issues like venue is “anybody’s guess.” Moss foresaw a timeline of “late-spring, early summer of 2024 when we’re finally getting to the possibility of a trial.” Trump’s goal then, he says, will be to delay proceedings as long as possible in the hopes that he will be voted back into the White House and be safe from a jury’s verdict while he serves in the presidency—or that an ally will win the presidency and pardon him or commute his sentence.

Advertisement
Advertisement

If we get to the point when a jury is impaneled, though, Trump will have to take the situation seriously. He can’t simply come to trial with the same talking points he’s been putting out on cable news and which are likely to become a mainstay of the campaign trail: that he magically declassified documents with his mind or that the FBI planted evidence on him. Most of this would be swatted down during pretrial motions, when a judge would determine what evidence can be presented to a jury.

“Most of what you’ve seen on Fox News, OAN, Newsmax, and the various conservative radio programs will never see the light of day in a trial because, unlike in that venue, in a trial there’s rules of evidence, there’s rules of procedure, and there’s points in time where the judge can intervene,” Moss noted. “Rank speculation about government misconduct is going to go nowhere in a court proceeding, and the government would intervene with what’s called a motion in limine, to try to preclude Trump from trying to bring up that kind of speculation and trying to poison the jury.” If Trump wants to argue that the FBI planted evidence, “he has to provide actual evidence of misconduct, not just speculate about it.” This is one of the reasons Trump’s lawyers have studiously avoided making such claims in the litigation he filed to try to slow down the investigation.

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

The same thing goes for his public claims that all the documents uncovered at Mar-a-Lago were actually secretly declassified by Trump before he left the White House. In order to make that argument in a courtroom, he’s actually going to have to provide some evidence to that effect. This is probably why there’s been recent reporting that DOJ prosecutors have been obsessively trying to pursue witnesses who could shed some light on Trump’s absurd declassification claims, going so far as to grant limited use immunity to Trump ally Kash Patel in order to compel him to testify about his own claims that he had witnessed Trump declassify certain documents. That limited use immunity, Moss explains, doesn’t prevent the DOJ from prosecuting Patel for any of his own potential wrongdoing related to the taking of the documents based on evidence they’ve gathered separately from his testimony, it just blocks them from using that testimony in such a prosecution. The DOJ granted that immunity because Patel had reportedly refused to testify at all. (If Patel lies about declassification to the grand jury—and if he was unable to provide any evidence to back up those assertions—he himself could still face prosecution.) The Department of Justice clearly felt it needed to know what Patel might testify at trial about the subject before proceeding, because such grants of immunity are so rare.

Advertisement
Advertisement

“The Justice Department was not going to leave anything to chance here. If they’re going to bring the indictment, they don’t want any surprises,” Moss told me on Tuesday.

To this effect, if Trump’s legal team tried to insist there was “declassification,” they’d have to back it up somehow with either documentation or witnesses. “Do you have any indication anybody else knew about this?” Moss said, describing a hypothetical question Patel might face on cross-examination at trial. “Because that’s going to be their argument to preempt their entire defense.”

Advertisement

It’s important here to note that the documents Trump took with him to his residence reportedly included some of our nation’s highest-level secrets, including on foreign nuclear programs and intelligence-gathering methods unknown to the public that could place sources—meaning people who have potentially taken risks with their own lives to provide intelligence to the U.S. national security apparatus—under threat. This level of seriousness is one thing that makes his argument about declassification so unlikely: If there were any official effort to create this standing order, the national security apparatus would have done everything in its power to prevent it. We likely would have heard of it before now.

Advertisement
Advertisement
Advertisement

Another defense Trump is likely to make that Moss says juries reject out of hand in these types of cases is that the documents Trump took weren’t really that secret. “That’s an argument that works great in punditry that goes nowhere in court,” Moss told me. “No Espionage Act defendant has ever been able to successfully claim the documents weren’t all that important. It simply does not fly.”

Again, jury selection will be a headache because it will be impossible to find jurors unfamiliar with Trump and almost equally difficult to find ones unfamiliar with this specific case. That obstacle, Moss notes, is surmountable: Prosecutors take on high-profile defendants all the time and are generally able to find jury pools willing to put aside their personal views of those defendants and consider the facts. Still, Trump will try to place at least one juror whom he believes is not willing to convict. “They only need one juror to have a hung jury,” Moss noted. The DOJ, meanwhile, will try to weed out any jurors who might be willing to nullify the verdict. “You can’t exclude people based purely on political views, but it’s something prosecutors would have to screen for as closely as they can in voir dire,” Moss said.

Advertisement
Advertisement

But that’s one thing Moss thinks won’t be that hard. He acknowledged that the task of compiling a jury willing to actually judge the facts unbiased by politics and rule on the evidence will be a steep challenge—but he said he thinks it is very doable.

“Juries convict people every day, or acquit them every day, as the case may be, often irrelevant or disconnected from whatever their personal views might be,” Moss said.

Ultimately, the main question will be when the jury actually gets to hear the case, and if it happens before Trump or a Republican friendly to Trump is able to win the White House in 2024. Trump’s campaign won’t stop the trial process, but the simple fact of his candidacy can slow it down via lengthy pretrial arguments and appeals over claims of “selective prosecution.”

“He will make some version of an argument, for sure, that this is not something that warranted prosecution, that the only reason it’s being done is because Joe Biden is president and Donald Trump is his likely opponent in 2024,” Moss noted. “That will, in my view, almost certainly fail, but it will drag out the process.”

Similar to his successful previous efforts in past legal proceedings, Trump is gambling that he can run out the clock, hoping that the voting public will come to his rescue before he faces true accountability. This time, though, it’s a bet he can’t afford to lose.

Advertisement