Federal Judge Aileen Cannon has scheduled Donald Trump’s criminal trial in the classified documents case to begin on May 20, 2024. In doing so, she denied Trump’s motion to postpone the trial until after the November election.
To say that we are in uncharted waters here is an understatement. American history holds no parallel. May 20 falls near the end of the primary season. By that time, nearly all Republican convention delegates will have been chosen. Only six states, none of them large, will remain.
Will Republicans vote for a candidate who may be appealing a prison sentence when the nation goes to the polls in November? And, of course, Trump’s potential conviction in the documents case is only one of a number of legal problems. He is already on appeal from a verdict in New York where a jury found him liable for sexual battery. He has been criminally charged in a state court in New York, where proceedings have been stayed. He likely will soon be indicted for post-2020 election actions in Georgia, and it seems clear that Special Counsel Jack Smith will bring charges relating to the January 6 protest in Washington.
It seems almost inconceivable that a nominee with such extravagant legal baggage, whatever one thinks of the merits of each of these cases, can win the general election. If that is true, and I believe it is, you wouldn’t think that primary voters would select that candidate. But in recent years logic has not always governed presidential politics.
Meanwhile, what are the merits of the Florida classified document prosecution? It would seem that Trump is obviously guilty. That he mishandled classified information is not seriously in doubt. (But see contrary view here.) That doesn’t necessarily mean he will be convicted, however. A friend who is an excellent lawyer, now retired, points out that Trump ordered the boxes moved from government control to his home while he was still president, and thinks a court may hold that this operated, as a matter of law, to declassify the files. He also thinks the U.S. Supreme Court could rule the Presidential Records Act unconstitutional as an infringement of the executive’s Article II powers (although Trump has been charged under the criminal statute governing handling of classified information, not the PRA, which includes no criminal penalties).
But such legal arguments likely will play out long after the jury’s verdict has been returned. As far as the jury is concerned, Trump’s best chance may be jury nullification. The Fort Pierce, Florida venue is a good one for Trump, and jurors, knowing that Joe Biden and other presidents, vice presidents and senators have removed classified documents to their homes or offices without penalty, may simply refuse to convict.
The one thing we can say with certainty is that the prospect of a criminal trial during the primary season is emblematic of the weirdest political season of our lifetimes.
UPDATE: The Guardian says that the Georgia indictment will come in the next few weeks:
The Fulton county district attorney investigating Donald Trump’s efforts to overturn the 2020 election results in the state of Georgia has developed evidence to charge a sprawling racketeering indictment next month, according to two people briefed on the matter.
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In the Trump investigation, the Fulton county district attorney, Fani Willis, has evidence to pursue a racketeering indictment predicated on statutes related to influencing witnesses and computer trespass, the people said. … [T]he new details about the direction and scope of the case come as prosecutors are expected to seek indictments starting in the first two weeks of August.
So, what did Trump do that counts as “racketeering”?
The specific evidence was not clear, though the charge regarding influencing witnesses could include Trump’s conversations with Georgia’s secretary of state, Brad Raffensperger, in which he asked Raffensperger to “find” 11,780 votes, the people said – and thereby implicate Trump.
For the computer trespass charge, where prosecutors would have to show that defendants used a computer or network without authority to interfere with a program or data, that would include the breach of voting machines in Coffee county, the two people said.
The breach of voting machines involved a group of Trump operatives – paid by the then Trump lawyer Sidney Powell – accessing the voting machines at the county’s election office and copying sensitive voting system data.
The copied data from the Dominion Voting Systems machines, which are used statewide in Georgia, was then uploaded to a password-protected site from where election deniers could download the materials as part of a misguided effort to prove the 2020 election had been rigged.
This strikes me as a feeble prosecution. Trump thought that the Democrats cheated in several states, enabling Joe Biden to win the election. He was right, up to a point, although it is unlikely that voter fraud actually swung any state, and his theories relating to the Dominion voting machines didn’t pan out. But so what? Trump investigated legal means of contesting the election result, as Democrats do all the time.
The problem is that this prosecution, like the others, is enabled by Trump’s own terrible judgment. Who is dumb enough to tell a Secretary of State to “find” 11,780 votes, on a conference call attended by a number of people, at least one of whom recorded it? Donald Trump, that’s who. Trump deserves credit for being willing to take on the Deep State, but the reality is that the Deep State has been beating Trump like a drum since 2016. The one-sided contest continues.
