What Donald Trump’s Trial Might Look Like

On October 14th, the day after the Select Committee to Investigate the January 6th Attack on the U.S. Capitol voted to subpoena Donald Trump, he released a long letter of “anger, disappointment, and complaint.” The committee, he said, had “perpetuated a Show Trial the likes of which this Country has never seen before,” with “no Due Process, no Cross-Examination, no ‘real’ Republican members, and no legitimacy.” (And, he added, it got “very poor television ratings.”) The committee, of course, was not staging any sort of trial; it was conducting an inquiry into a series of events that culminated in Congress members fleeing a mob. But at its final public meeting, on December 19th, it voted to send criminal referrals to the Department of Justice regarding four felonies that Trump might have committed. If he wants a proper trial, the committee may have helped him get one.

One of the referrals is for violating a statute in the U.S. criminal code that deals with inciting, assisting, or giving aid or comfort to an insurrection. The others are for obstruction of an official proceeding (namely, the counting of electoral votes), conspiracy to defraud the United States, and conspiracy to make a false statement. Referrals like these do not oblige the D.O.J. to begin a prosecution, or to pursue the exact charges that they specify. Initially, those choices lie with Jack Smith, who, in November, was named special counsel for the department’s investigation into January 6th, with a focus on Trump. (His remit also includes the question of whether Trump improperly kept classified documents at Mar-a-Lago.) If Smith recommends that Trump be charged, Attorney General Merrick Garland would have to sign off, and a grand jury would have to approve an indictment.

There is no exact model for what such a trial might look like. Presidents have been impeached, but none has ever been asked, after leaving office, to turn himself in for arraignment, with the prospect of arrest if he failed to comply. No judge has had to consider the question of cash bail for a billionaire who once lived in the White House, or asked the former head of state to turn over his passport. The voir dire of potential jurors would be an unprecedented spectacle; so would the mug shot.

Trump, however, would not be alone in facing trial as a result of January 6th. The D.O.J. has charged some nine hundred defendants, and has successfully prosecuted several members of the Oath Keepers on charges that match or parallel some of those in the committee’s referral. Trump, unlike the Oath Keepers, did not enter the Capitol on January 6th. From the White House, though, to take one example from an executive summary of the committee’s final report, he “repeatedly and unlawfully pressured” Vice-President Mike Pence to reject several states’ electoral votes in favor of fraudulent ones. (John Eastman, the former law professor who helped Trump devise what became known as the “fake electors” scheme, was the subject of committee referrals, too.)

The committee’s nine members—including the Republicans Liz Cheney and Adam Kinzinger—ran a tightly managed process. In televised hearings, they were able to play the snippets of videotaped testimony that they judged most effective. Prosecutors at trial, by contrast, have to deal with the live testimony of the witnesses before them. The rules of discovery mean that Trump’s lawyers would have access to full transcripts of depositions and to any exculpatory material the prosecutors possess. Evidentiary disputes, such as the one over whether Cassidy Hutchinson’s testimony that a Secret Service agent told her about an altercation in a Presidential vehicle counted as inadmissible hearsay, would be addressed not by tweets but by litigation. Another point of contention would be whether Trump knew that he’d lost the election and was thus acting corruptly. Witnesses such as Bill Stepien, Trump’s campaign manager, and Greg Jacob, Pence’s counsel, could speak to that. But Trump could call witnesses, too—and prosecutors could cross-examine them. He would also get to decide whether to take the stand himself, a decision in which his vanity would surely be a factor.

Trump has made many frivolous claims of executive privilege, including one, involving a document request from the January 6th committee, that the Supreme Court rejected. A trial would no doubt bring new objections and appeals, some of which might be more substantive. All of this would take time, and the first Republican primaries for 2024 are fast approaching. An indictment and a trial would not legally bar Trump from running for President again. (Indeed, any attempt to block him from office if he’s convicted would face what are almost certainly insurmountable constitutional challenges.) And whoever is sworn in as President in January, 2025, would have the option of pardoning Trump.

But a Presidential pardon would be limited to federal crimes. The first indictment of Trump related to January 6th may come at the state level, in Fulton County, Georgia, where District Attorney Fani Willis appears to be in the late stages of her own investigation. Willis has a repertoire of Georgia laws to draw on, including a statute on criminal solicitation of election fraud, which would seem to describe the phone call in which Trump demanded that Secretary of State Brad Raffensperger “find” him more than eleven thousand votes. A special grand jury has been sitting for months, and has heard testimony from a range of witnesses, including Governor Brian Kemp. Georgia would likely be the focus of any federal trial as well, because the Trump team’s attempts to overturn the election there were especially blatant. In addition to the Raffensperger call, which was recorded, the effort to advance the fake-elector scheme in Georgia left a rich paper trail. Incidentally, Georgia trials, unlike federal ones, can be televised.

Trials inevitably have uncontrollable aspects, even when the defendants are more predictable than Trump. They are rightly harder and riskier for prosecutors than hearings are for members of Congress. What’s at stake for Trump is his freedom, not just his television ratings: the charges that the January 6th committee referred carry sentences of up to twenty years in prison. But the adversarial nature of the process can be highly productive. The committee came up with a good deal of evidence; a trial is where it can be tested. ♦

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