The Waiting Is the Hardest Part

Judge Aileen Cannon has set a start date for former President Donald Trump’s trial on the retention of national security information and obstruction: May 20, 2024. No surprises here. Cannon gave neither the government its preferred-but-wildly-optimistic December trial date nor the Trump team its sure-but-what-if-we-never-have-a-trial way. 

So May it is, right? Eh. It is possible for this to go to trial in May. But to reiterate what we said last week, there’s a lot of wiggle room left. Let’s see how these first few months go and how crazy things get once the motions start flying. 

It’s also worth remembering that this case is the most legally complicated one Trump faces. So even if it doesn’t go to trial before the election, it doesn’t mean Trump will be trial-free in ‘23. More on that in a bit.

Democrats Ponder an Election-Year Trump Trial

Assuming Cannon’s decision stands, Trump’s trial will begin after most GOP nominating contests have taken place. And if he has already secured the Republican nomination, Trump will effectively begin the general election phase while his case is being tried in a courtroom—an unprecedented situation that Democrats are already thinking will work to their advantage.

“If this happens in May, and even if the Trump campaign gets their wish and it gets pushed back until after the election—either of those two scenarios puts Trump’s criminality, his chaos, his fitness for office front-and-center for the general election,” says Maria Cardona, a Democratic operative. She’s among the many Democrats who say their party should not overthink the strategy: A federal criminal trial is bad for Trump and the GOP, so don’t get in your opponent’s way.

“Just let the contrast play itself out,” says Joe Trippi, a veteran Democratic strategist who managed Howard Dean’s 2004 presidential campaign. “Whatever’s going on in the trial, let it take care of itself.”

It’s also the case that President Joe Biden is in a delicate spot. With Trump and his supporters already assailing his prosecution as a political witch hunt, Biden himself has little incentive to give more fuel to Republicans by speaking about this or other ongoing prosecutions of Trump while on the campaign trail.

Rodericka Applewhaite, an operative with experience on Democratic campaigns, says a silent strategy should actually work to Biden’s strengths by allowing him to continue to be the president, to make a positive case for his own first term, and to appeal as a steady force to swing voters who were for him in 2020 without getting pulled into the circus surrounding Trump’s trial. Keeping attention on the trial itself could also help paper over the issues dogging Biden—ideological gripes from progressives and concerns about his age from independent voters.

“Democrats have done a very good job staying above the fray” on legal issues, says Applewhaite.

While Republican diehards will rally behind Trump for facing what they perceive is a politicized prosecution, Democrats say the suburban independent voters in battleground states who will decide the election will be reminded of the disorder that swirls around him.

“‘I was framed’ doesn’t really work with independents,” says Applewhaite.

Mike’s View

Biden has plenty of built-in advantages as an incumbent—remember, four of the previous six presidents won a second term—and he should take a Hippocratic approach to his campaign. Getting into the mud with Trump while his trial is ongoing would be a clear violation of “doing no harm” to his reelection chances. The Democratic base won’t need motivation to turn out against Trump, so Biden has no incentive to take his rhetorical cues from MSNBC’s primetime lineup.

Yet his team would be smart to take notes from the campaigns of the previous two two-term presidents, George W. Bush and Barack Obama. Both won reelection by reframing their races from a referendum on their own performance in office to a choice between themselves and their opponents—and then hammering over and over again why the alternative was too dangerous and extreme. And while America is already familiar with the choice between Biden and Trump, it’s a risk for Democrats to rely on chaotic legal fights automatically tilting independents their way. They’ll want to remind these voters again and again how Trump’s trouble with the law undermines his fitness for office.

Waiting for (Another) Indictment

This week, we expect the next shoe to drop from special counsel Jack Smith. The letter Trump received from the Department of Justice last week said that he was the target of its investigation into violations of, among other things, Section 241 of the U.S. Criminal Code related to January 6. We will cover the indictment as soon as we get the details, but it’s worth a short discussion on Section 241 while we’re all waiting. 

First, this law comes from the post-Civil-War era as a way to charge members of the Ku Klux Klan. What it criminalizes is very broad:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States …

In lay terms, you can get 10 years in prison if you have an agreement with anyone else to prevent someone—or even just threaten to prevent someone—from doing something they have the right to do under federal law. And there’s a lot of federal laws—not to mention that whole Bill of Rights thing.

But there’s a rub. (You knew there had to be a rub, right?) Most courts have held that a defendant has to intend to prevent someone from, let’s say, having their vote counted. Here’s a hypothetical that might be helpful: A guy cuts you off while you’re driving, and you and your buddy yank him out of his car and rough him up. You’ve committed quite a few crimes to be sure. But then it turns out that your victim was on his way to vote. Can the feds charge you with violating Section 241 too? Probably not. Unless they can prove you didn’t want this guy to vote or at least knew he was on his way to vote. 

In short, it’s not enough to show that the effects of your agreement with your friend were enough to prevent someone from exercising their constitutional right; it has to also be your intent. But there are limits to how “specific” one’s intent needs to be, too. What if you decide to rig a city council election by throwing away ballots—but that local race is on the same ballot as the federal races? Does the prosecution need to show that your goal was to rig a federal election—thereby denying that person their federal right to vote? No, it’s enough that you knew you were denying them their right to vote in a federal election even if it wasn’t the purpose of your vote-rigging scheme. 

Sarah’s View

Where does that leave us with Trump? It’s impossible to say right now. That’s why we need the indictment. I doubt this will have a lot to do with the events on January 6 itself—Trump’s speech, the violence at the Capitol, or even Trump’s calls to individual members of Congress urging them not to certify the vote. Instead, I think we’re going to see a lot of details—and I assume a lot of new evidence—related to the plan to submit competing slates of electors from states that Trump lost. 

Waiting for Georgia

And just another reminder: We’re still expecting to see indictments coming out of Georgia in the next few weeks for alleged violations of state election law. Again, it’s best to withhold judgment until we see the allegations, but there’s every reason to believe these charges could be the most damning for Trump on the facts. Because the potential charges—solicitation to commit election fraud and conspiracy to commit election fraud—are more narrowly defined than the Section 241 violations discussed above, the evidence is cleaner.

So by Labor Day, Trump will likely be facing criminal charges in four jurisdictions—New York (hush money payments), Georgia (vote rigging), Washington (vote rigging), and Florida (classified documents and obstruction). 

To Plea or Not to Plea

We got a reminder this week that politics and law aren’t just colliding on the Republican side of the aisle. After several surprising hours of back and forth Wednesday in federal court, Hunter Biden pleaded not guilty to tax and gun charges. 

First, to jog your memory: Biden is charged with two misdemeanors related to tax evasion and a felony for lying on a gun purchasing form when he said he was not an unlawful user of a controlled substance. The Department of Justice announced it had reached a plea deal that would involve probation for the misdemeanors and pre-trial diversion for the felony, which would allow Biden to avoid being a convicted felon. Federally convicted felons lose all sorts of rights—they can’t vote, serve on a jury, or own guns.  

Was this a “sweetheart deal”? It depends how you look at it. On the one hand, people who do the things that Hunter Biden did very rarely get charged. So from that perspective, Biden was worse off than a similarly situated tax evader who had paid back what he owed or a drug user who owned a gun. (Note to readers: Maybe don’t publish a memoir about how much cocaine you were doing at the time of your gun purchase.). But—and this is a big but, as Sir Mix-a-Lot likes to say—those who are charged with felony gun possession by the Department of Justice almost never get pre-trial diversion. In fact, a plea deal like this on a gun charge is disheartening given the resources that the DOJ puts into getting illegal guns off the streets. 

Trouble was in the water from the beginning on this, though. Last month, Biden’s legal team said this plea agreement meant the DOJ investigation was over. But the U.S. attorney overseeing the investigation, someone who would know, said it wasn’t. And the exact details of the plea deal itself were never released. 

During Wednesday’s hearing, it was clear Biden’s team thought the plea deal covered both current and potential charges and the DOJ team thought it only covered these specific tax and gun charges. After some scuffling, though, the Biden team suddenly agreed to DOJ’s narrower scope. But given the earlier miscommunication, that wasn’t enough for the judge Before signing off on any plea agreement, she wants each side to explain what her role would be in enforcing that pre-trial diversion deal for the gun charge should Biden violate any of its terms. Without a plea deal yet in place, Biden had no choice but to plead not guilty. 

This doesn’t mean the case is going to trial. It also doesn’t mean there will be any changes to the plea deal as we currently understand it. But it does mean that the DOJ investigation into Hunter Biden is continuing, and that’s supposedly a big deal for Republicans in Congress who want to do their own investigation into Biden. While most GOP members attacked the agreement as a “sweetheart deal,” some of these same people seemed to object to a deal that left Biden open to further prosecution by the feds. Why? The theory goes that if Biden’s plea deal had covered all past illegal acts, Biden would have been immune from future federal prosecution and unable to assert his right against self-incrimination to refuse to testify in front of Congress. All of that is somehow evidence that the Justice Department is even more corrupt in its efforts to protect the president’s son. Damned if they offer a broad plea deal, damned if they don’t.

So what’s the punchline here? We’ll see, but it’s likely that Biden’s plea deal goes through just fine … next month.