Turley: Trying Trump – Scandal May Be His Element… But This Time May Be Different

Authored by Jonathan Turley,

Below is the column in the Messenger on the Trump indictment. As expected, Trump is already campaigning on the issue. In a rally in Georgia, Trump declared: “They’ve launched one witch hunt after another to try and stop our movement, to thwart the will of the American people. In the end, they’re not coming after me. They’re coming after you.” Trump may not be the first president to be arrested, but his case is already unprecedented. It could get even more wild in the months to come.

Here is the column:

“I will have to place you under arrest.”

Those words to an American president have only been uttered once in history. And, no, it was not a line uttered at Mar-a-Lago. Those were the words of William Henry West, a Civil War-era African American soldier and later a police officer, when he arrested Ulysses S. Grant for speeding in a horse-drawn carriage on the streets of Washington, D.C. in 1872.

Grant had been warned previously about his speeding and, according to West, looked like “a schoolboy who had been caught in a guilty act by his teacher.”

Unlike Donald Trump, Grant did not proclaim, “I am an innocent man!” But, then again, he was not looking at charges that could bring as much as 20 years in prison. (Grant paid a $20 fine).

West and President Grant became friends. That also is not likely to occur between Trump and the Department of Justice (DOJ) special counsel, Jack Smith, who Trump has called a “rabid wolf.”

Many are celebrating what the Drudge Report suggested was “the downfall of the Don.” However, destroying Trump in a scandal is like trying to drown a manatee: Both are in their element.

The fact is that many people will see this indictment as confirmation of their worst expectations of either Trump or the Justice Department.

It will be difficult to get through a trial before the 2024 presidential election. Even if the Justice Department pushed for a trial, judges likely would balk at the notion of trying this case months before the election.

Either way, Trump — if he won reelection to the White House — could give himself a pardon before or after any conviction.

How the Justice Department proceeds from this point will either confirm or rebut allegations of political bias.

One of the open questions will be the other part of Smith’s mandate.

He was asked to look into criminal charges related to both the Jan. 6, 2021, riot in the Capitol and the classified documents which Trump allegedly held at his Mar-a-Lago home. Smith made fast work of the Mar-a-Lago part, but there is no indication of what is occurring on the other matter.

If Smith has found that there is no basis for criminal charges over Trump’s role on Jan. 6, it would be the final rejection of claims by the House of Representatives’ Jan. 6th Committee and by a host of politicians and pundits.

The question is whether Smith will be as quick to resolve that question as he has been in alleging the crimes at Mar-a-Lago.

Regarding Mar-a-Lago, the reported inclusion of a charge under the Espionage Act is a bit surprising, given the novel legal issues surrounding the handling of such documents. However, the inclusion of false-statement and obstruction charges is what many of us have predicted all along. These are the favorite charges of federal prosecutors; they are easier to prove and can be presented as stand-alone offenses.

When Grant was arrested, he did not contest the charge. Either he was speeding or he was not. But these charges against Trump can have the same cut-and-dried look for jurors: Either a statement was true or it was not. While there will be a question of whether Trump or his lawyers were responsible for false representations to federal authorities about the alleged documents, the question for the jury is free from the factual and constitutional complexities suggested by his team.

Those charges will become even more challenging for Trump if, as rumored, Smith has secured the cooperation of individuals within the Trump team. Earlier, Smith reportedly compelled the appearance of Trump lawyers before the grand jury. There is also a leak suggesting that Smith has an audiotape of Trump referring to his possession of a classified document on Iran — and acknowledging that he could not show or discuss the contents.

For two years, I have said that the Mar-a-Lago charges — particularly obstruction — represent the greatest threat to Donald Trump. It remains baffling why Trump forced this issue over these documents rather than just give them all back. (He could still have gotten access to them from the National Archives.) He knew that he was unlikely to receive much deference from the DOJ. Yet, he allowed this collateral controversy to consume his campaign.

Once again, however, the campaign is all about Trump. Moreover, there could be a method to the madness, as Trump seeks to try this case before the public.

Indeed, the ultimate jury in this case could prove to be the American people. The 2024 election could become a referendum on this case. I have long maintained that presidents can pardon themselves, and Trump could well use his mugshot as a campaign poster.

One of the early issues for the court in Florida will be whether to gag the former president from campaigning on this matter. That could raise serious free-speech concerns and could prove one of the early appellate issues in the case if the court imposes strict limits on what Trump can say about it.

Trump, based on past behavior, is likely to invite rather than avoid such fights.

The Justice Department has done tremendous damage to itself — and, potentially, to this case — due to its prior history with Trump. FBI and Justice officials have shown open bias against him and have treated him differently than figures like former Secretary of State Hillary Clinton. That record was further exposed recently by another special counsel, John Durham, who found that the Justice Department lacked a basis to launch the Russia-collusion investigation.

Polls show that the majority of Americans harbor serious doubts about the independence and integrity of the FBI. Many voters are skeptical over yet another criminal allegation just before a presidential election.

Trump is now facing the most serious criminal charges in his career. If successful and Trump is not pardoned by himself or one of his Republican competitors (or even by a magnanimous Joe Biden), it could be a lethal threat. At 76 years old, Trump would be unlikely to survive a prison stint even without the imposition of the maximum sentences allowed under these charges.

He will surrender on Tuesday — but that will be only the start of an existential fight for Trump.