[The potential for conviction and actually winning a jury verdict
are two very different things — particularly against the notoriously
combative and slippery former president. To convict, Mr. Smith will
have to overcome four significant hurdles.]
[[link removed]]

HOW TO CONVICT TRUMP  
[[link removed]]


 

Norman Eisen, Andrew Weissmann and Joyce Vance
June 9, 2023
New York Times
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ The potential for conviction and actually winning a jury verdict
are two very different things — particularly against the notoriously
combative and slippery former president. To convict, Mr. Smith will
have to overcome four significant hurdles. _

,

 

It has been expected for months, but the reality of it is no less
staggering: The special counsel Jack Smith has brought seven federal
charges against Donald Trump. It is the first time in our nation’s
history that a former president has been indicted on federal charges,
and among Mr. Trump’s many legal problems, it has the greatest
likelihood of a pre-election conviction.

The prosecution follows a long investigation into Mr. Trump’s
possession of hundreds of classified documents and other presidential
records at his private club in Florida and elsewhere after he left
office. It poses unique challenges, and not only because the defendant
is a former president who is running for re-election in an already
tense political environment.

Prosecutors will have to reckon with the challenge of publicly trying
a case that involves some of our nation’s most highly classified
secrets.

Furthermore, this case will inevitably have to be coordinated for
scheduling purposes with the case against Mr. Trump by the Manhattan
district attorney, Alvin Bragg, as well as potential future charges in
Fulton County, Ga., and perhaps by Mr. Smith related to the Jan. 6
attack on the Capitol.

Still, from what we know of the charges and publicly available
evidence, Mr. Smith appears to have the upper hand with a compelling
case
[[link removed]].
But the potential for conviction and actually winning a jury verdict
are two very different things — particularly against the notoriously
combative and slippery former president. To secure a conviction, Mr.
Smith will have to overcome four significant hurdles.

Keep things simple

Over two years (and counting
[[link removed]]),
the case unfolded in twists and turns that have dipped into and out of
a dizzying whirl of topics: the administration of presidential
documents, delicate aspects of national security, classification and
declassification of documents, special counsel regulations, the
spectacle of a search warrant being executed by F.B.I. agents on the
luxury resort of a former president and the legally dubious
appointment of a special master by a rogue Florida district court
judge.

But for all that chaos and confusion, Mr. Smith’s job is
straightforward. He must cut through it all and make clear to the jury
that this case is about two simple things: First, a former president
took documents containing some of our nation’s most sensitive
secrets, which he was no more entitled to remove than the portraits of
George Washington and Benjamin Franklin hanging on the walls of the
Oval Office. Second, when he was caught, he persistently made up
excuses, lied and tried to cover up his behavior, which he continues
to do.

Mr. Trump took about 13,000 government documents, among them over 300
documents
[[link removed]] with
classified markings, with some of our nation’s most sensitive
secrets, reportedly
[[link removed]] containing
secrets about Iran’s missile program, foreign nuclear issues, China
and the leadership of France
[[link removed]].

By doing so, Mr. Trump put our national security at risk. When we
consider these documents, we see not only paper but also the U.S. and
allied human assets who gather our secrets and do so to keep America
and the world safe. By putting this sensitive information in highly
insecure circumstances, Mr. Trump put our nation, our allies and all
of us as individuals in jeopardy.

The indictment reportedly includes seven charges
[[link removed]],
related to willfully retaining national defense secrets in violation
of the Espionage Act, making false statements and conspiracy to
obstruct justice.

The evidence a jury hears at trial must be organized around a simple
theory of the case and streamlined into the form of readily
understandable and convincing proof. Fortunately for Mr. Smith,
everything we know about the case provides ample support for an easily
digestible one-two narrative punch of Mr. Trump taking documents that
didn’t belong to him and then lying about it to cover up his
misdeeds.

The Trump defense

One usual challenge that may not be much of a hurdle is Mr. Trump’s
defenses. His claim that he can declassify documents “even by
thinking about it” is inimical to applicable law. And his claim that
the Presidential Records Act gives him a right to attempt to keep
these documents flies in the face of the statute
[[link removed]].

The justifications Mr. Trump has so far advanced are so thin and so
inconsistent that we expect Mr. Smith will get an order from the judge
that they are frivolous and may not be argued to the jury unless Mr.
Trump introduces competent evidence to support them. (He most likely
can’t.)

These cases are so hard to defend that the usual approach is to plead
guilty. That’s what other prominent defendants, such as the former
Central Intelligence Agency directors John Deutch and David Petraeus,
agreed to when caught with mishandling classified documents. (Mr.
Deutch was pardoned before the charges were filed.) But Mr. Trump’s
case is unique because of his characteristic refusal to ever admit
wrongdoing. It’s nearly impossible to imagine him standing up in a
courtroom in a plea deal and saying that he is guilty.

By charging the case in the Southern District of Florida, the special
counsel has wisely pre-empted one other potential defense: improper
venue. The rule is that a case must be brought where the “essential
conduct” took place, and here there was an argument for Washington,
D.C., as an alternative, one with possibly friendlier juries for Mr.
Smith. But there is potentially much at stake on the proper selection
of venue: This term, the Supreme Court is deciding a case
[[link removed]] that
looks at whether the price of selecting the wrong venue could be
dismissal of the charges and prevention of prosecuting the offense
again.

The clock is ticking

Mr. Smith’s third hurdle is time. He will have to battle the clock.
On the one hand, he has to ensure that Mr. Trump, like any defendant,
has sufficient time to file motions challenging the charges and
evidence and time to prepare for trial. The robust materials the
government is required to provide to a defendant in discovery must be
turned over promptly so the government does not extend the clock.

Special attention is required by Mr. Smith here because the case
involves classified evidence. That means the court will probably have
to deal with motions under the Classified Information Procedures Act.
These rules create avenues for the government to prosecute the case
and protect classified information without having a defendant graymail
the government with the risk of public disclosure.

But because this case is in Florida, where the act is rarely used,
rather than in the District of Columbia, where it is invoked more
commonly, prosecutors will have to contend with a judge who may not
have experience with these intricate issues. There is also the strong
likelihood the government will be forced to seek other protective
orders as well, as we saw New York Supreme Court Justice Juan M.
Merchan impose in the Manhattan case, to prevent Mr. Trump from using
material obtained in discovery to intimidate or retaliate against
witnesses
[[link removed]] or
otherwise misuse discovery materials.

American voters are entitled to a determination of Mr. Trump’s guilt
at a trial. Ideally, that will happen before the presidential
nominating process, but at a minimum, it must take place before the
general election. That can be done while ensuring that the defendant
has his day in court, with full due process rights to seek to be
cleared of charges against him — or not, given the strength of the
evidence against him.

Persuade the American public

Mr. Smith can educate the public in court filings that the charges are
merited. He should follow the lead of the special prosecutor Archibald
Cox, who held a news conference
[[link removed]] to
explain his case directly to the American public during Watergate. In
October 1973, as tensions were coming to a boil, with Mr. Cox having
issued a grand jury subpoena for the incriminating Oval Office tapes
of President Richard Nixon, the special prosecutor rejected a
compromise offer from the White House to have a senator listen to the
tapes and verify White House-drafted summaries. Mr. Cox chose to make
a detailed presentation to the press and explain to the American
people why he was seeking a ruling from the Supreme Court that he was
entitled to the White House tapes and would not settle for a
cherry-picked summary.

Mr. Smith can make a public statement explaining, without straying
from the four corners of the indictment, why the charges against Mr.
Trump are consistent with — indeed, required by — previous Justice
Department cases in which many defendants were charged in similar or
even less egregious factual scenarios.

It is impossible to overstate how essential it will be for Mr. Smith
to overcome these hurdles and persuade the trial jury and the American
people that whether they like the former president or not, whether
they voted for him in the past or intend to vote for him again, he
committed serious criminal acts. The consequence of doing that would
be nothing short of affirmation of the rule of law in this country.
The alternative is too grim to contemplate.

_Norman Eisen was special counsel to the House Judiciary Committee for
the first impeachment and trial of Donald Trump and is a senior
fellow at the Brookings Institution. Andrew Weissmann, a senior
prosecutor in Robert Mueller’s special counsel investigation, is a
professor at N.Y.U. School of Law. Joyce Vance
[[link removed]], a
professor at the University of Alabama School of Law and the author of
the newsletter Civil Discourse [[link removed]],
was the U.S. attorney for the Northern District of Alabama from 2009
to 2017._

_The Times is committed to publishing a diversity of letters
[[link removed]] to
the editor. We’d like to hear what you think about this or any of
our articles. Here are some tips
[[link removed]].
And here’s our email: [email protected]
[[link removed]]._

_Follow The New York Times Opinion section on Facebook
[[link removed]], Twitter (@NYTopinion)
[[link removed]] and Instagram
[[link removed]]._

* Donald Trump
[[link removed]]
* criminal justice system
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]