Few citizens face the kind of perfect storm of legal threats engulfing Donald Trump. And given that he is a past and possibly future president running for a new term, the entire country could share in his historic ordeal.
Strong indications Tuesday that Trump could soon be indicted in a third case – this one in special counsel Jack Smith’s probe into efforts to overturn the 2020 election – deepened the legal and political tension surrounding the 2024 election. Trump said that Smith sent him a letter on Sunday informing him he was a target of the investigation, a step that usually precedes charges. This development increased the possibility that Trump, who’s pleaded not guilty in two other criminal indictments, will be required to punctuate his time on the campaign trail with long days in court and shell out for expensive legal bills.
Trump has already been indicted in a case in Manhattan arising from a hush money payment to an adult film actress and separately over his retention of classified documents at his Mar-a-Lago resort in Florida. Trump’s defense against every charge – that he’s the victim of a politicized bid to keep him out of office – threatens to further damage the critical institutions of legal accountability that underpin American society.
Trump showed Tuesday that he’s willing to once again trash faith in US democracy to protect himself. “We have a man, the only way he can get elected is to weaponize the Justice Department,” Trump said, referring to President Joe Biden while visiting Iowa. “If you say something about an election, they want to put you in jail for the rest of your life,” he added, alluding to the 2020 contest that he still falsely says was rigged against him.
Even without Trump’s incendiary rhetoric, the political and legal systems would be facing an extraordinary test, given that the front-runner for the GOP nomination is being prosecuted by the Justice Department of his potential Democratic rival in November 2024.
Yet an indictment over the twice-impeached Trump’s unprecedented bid to break the chain of peaceful transfers of power would be the most profound of the legal accusations against him. Smith has not tipped his hand over what charges Trump could face. But glimpses into his work hint at an investigation of vast breadth and scope covering the effort to overturn the election in key swing states, alleged attempts to thwart the process of awarding electoral votes, and also the former president’s actions on January 6, 2021, when a mob of his supporters invaded Congress in a bid to halt the certification of the election.
An indictment over such matters would effectively amount to the United States for the first time charging an ex-president over an attempt to destroy constitutional institutions and the foundational principle that voters get to choose their leader. Former Trump lawyer Ty Cobb told CNN’s Erin Burnett on Tuesday that any potential indictment relating to election interference ought to be viewed as a particularly historic stain. “It should concern him more because it will be a legacy-defining decision far greater than the Mar-a-Lago offenses,” Cobb said. “This is one of the great constitutional insults of our time. The country owes it to itself to reassert the rule of law and demonstrate that at least the vision of America is something we are willing to protect and hopefully deter (future threats to that vision) through punishment of Trump if he is convicted.”
Retired federal Judge J. Michael Luttig, a renowned conservative legal scholar, reacted to signs Smith may indict Trump over his attempts to invalidate the 2020 election by saying any other attorney general or special counsel would do the same.
“The former president has left Jack Smith no choice but to bring charges, lest the former president make a mockery of the Constitution of the United States and the Rule of Law,” Luttig said in a statement.
And Jeffrey Sloman, a former US Attorney for the Southern District of Florida, summed up the national challenge posed by Trump’s existing indictments in the heat of an election this way: “These are momentous times, the fact that the former president is the defendant in a federal case is quite unusual … these are unprecedented times.”
The target letter sent to Trump was not the only sign Tuesday that more accountability could be looming over the alleged scheme to overturn the 2020 election. Michigan’s Attorney General Dana Nessel, a Democrat, announced multiple felony charges against 16 fake electors who signed certificates falsely claiming Trump won the Wolverine State in 2020.
The possibility of another indictment against Trump also raises new political questions. While his support in the primary appears to have hardened after he was charged in previous cases, a fresh indictment and the potential spectacle of another trial may begin to test whether some Republican voters start to regard Trump as too much of a liability to nominate for a national election.
It would also give the ex-president’s GOP primary rivals an opening – should they wish to take it – to highlight his vulnerabilities. It’d be a chance to define their own campaigns, which are currently trailing in his wake, but it would also risk alienating his supporters.
Several top candidates did show tentative signs of seeking to exploit Trump’s plight, even if their unwillingness to directly criticize him highlighted his political strength.
In an interview with CNN’s Jake Tapper, Florida Gov. Ron DeSantis emulated Trump’s line when he warned the country was “criminalizing political differences,” but he also implied that Trump’s legal mess was becoming a distraction. “This country needs to have a debate about the country’s future. If I’m the nominee, we’ll be able to focus on President Biden’s failures, and I’ll be able to articulate a positive vision for the future,” DeSantis said. “I don’t think it serves us good to have a presidential election focused on what happened four years ago in January.”
Former South Carolina Gov. Nikki Haley made a similar point, but more forcefully. “The rest of this primary election is going to be in reference to Trump, it’s going to be about lawsuits, it’s going to be about legal fees, it’s going to be about judges,” Haley told Fox News. “It is just going to continue to be a further and further distraction.”
But Republican House Speaker Kevin McCarthy – who once said Trump bore responsibility for the January 6 insurrection but has long since hitched his career to the ex-president – offered what is likely a more authentic view of many Republican voters’ sentiments regarding a possible new indictment of Trump.
“If you notice recently, President Trump went up in the polls and was actually surpassing President Biden for reelection. So what do they do now? Weaponize government to go after their number one opponent,” McCarthy said.
Plenty more of Trump’s closest allies on Capitol Hill, despite not knowing what charges he could face in this case, characteristically leapt to his defense on Tuesday, accusing the Biden administration of weaponizing justice against him.
But if Trump becomes the Republican nominee while fighting to clear his name in any of these cases, voters would also be presented with the extraordinary dilemma of whether to put someone who could be a convicted felon into the Oval Office and whether to entrust him with the nation’s most vital secrets, national security and democracy.
A third indictment would also further fuse Trump’s legal campaign and political one. While he proclaims he’s running to save America, part of his motivation appears to be to save himself, since if he wins the presidency again, he’d have the capacity to potentially wipe out some of the pending cases against him. His strategy of portraying every investigation into his conduct as politically motivated has the impact of blurring evidence against him and of distracting from his often aberrant behavior in office and afterwards. But it also risks further damaging the legal system in the eyes of millions of Americans who support him.
And even if he is defeated in his bid for a third successive GOP nomination, Trump’s messaging ensures that a third election in a row will be tainted by legal complications – following controversy over the FBI’s probe into Hillary Clinton’s email server in 2016 and Trump’s bid to stay in power after losing the 2020 race.
One of the thorniest questions raised by the possibility of another indictment would be how to schedule multiple trials in a way that satisfies the need to give Trump a fair trial but permits the wheels of justice to turn at reasonable speed. Trump is already due to go on trial in March in the Manhattan case. More trials will further demand his time during a period when he could be expected to be crisscrossing the nation for rallies and potentially taking part in debates and, if he’s the nominee, the Republican National Convention.
The situation could become even more complicated since Trump is still waiting to hear whether he will be charged in an investigation by a district attorney in Georgia over his alleged effort to steal Biden’s election win in the key swing state. On its own, the Georgia case would be a staggering blemish on a presidency. But such is the legal morass facing Trump that it has become something of an afterthought at this point.
The potential traffic jam of courtroom action hung over the first hearing Tuesday before Florida District Court Judge Aileen Cannon, who will preside over Trump’s trial over the alleged mishandling of national defense information and potential obstruction. The Trump-appointed Cannon signaled that she thought Smith’s request for a trial in December was too soon.
But there was no sign that she was sympathetic to a request by Trump’s legal team to put off the trial until after the 2024 election. His team had argued that the ex-president would be too busy campaigning to take part. Trump’s attorneys also introduced a political angle into the case, claiming the public viewed it as the GOP front-runner and his possible Democratic election foe, Biden, squaring off in the courtroom. Prosecutor David Harbach, however, rejected any claim of politicization and said a grand jury had returned charges and deserved to have a trial.
If Tuesday’s developments are any guide, Trump could soon face the possibility of yet another trial.
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