Trump has options to fight impeachment, but they may face challenges

Former President Donald J. Trump and his advisers have gone to great lengths to assemble a legal team for his first scheduled trial on Tuesday after being accused of mishandling classified documents and obstructing the efforts of the government to find them.

But even if Mr. Trump figures out who will be representing him, the lawyers will face a bigger challenge: how to refute the charges in a criminal case where their options may be limited.

While no one knows exactly how Mr. Trump will tackle the toughest charges, there are plenty of opportunities to use the justice system to delay the case, turn it into a political circus, or portray himself as a victim of federal prosecutors. and varied.

Even before his indictment, Mr. Trump, his allies and his lawyers had alluded to some of the arguments they could make.

Among other things, they allege that Mr. Trump had the right to take the documents from the White House and that he released them before he left office. They could charge prosecutors with wrongdoing or try to show that he was a victim of selective prosecution. And they could try to exclude potentially damning evidence from the trial or try to force the government to release classified material it wants to keep secret.

But all those claims can be difficult to uphold in court.

Samuel Buell, a former federal prosecutor and professor of law at Duke University, said it was generally difficult to get a federal indictment dismissed before going to trial, and that Mr. would have to fight hard to prevent the case from being moved. ahead.

“Their options here are extremely limited,” said Mr. Buell, “and it’s highly unlikely they’ll prevent the case from going to a jury.”

The former president has long used lawyers as public relations assistants, deploying them to make arguments that are often better suited to the campaign trail than the courtroom. But with much more at stake this time around, the challenge will be to strike a balance between doing their client’s bidding and complying with the rules of criminal procedure.

On Monday, Mr. Trump and his aides flew to Miami, where he has a golf club, and crouched down to discuss possible new attorneys after James Trusty and John Rowley, the two who had most actively represented him in dealing with the special counsel. Jack Smith, resigned the day after the charges were filed.

It remains unclear whether any other attorneys will be present at Tuesday’s arraignment of Todd Blanche, who is now representing Trump in both the Florida federal case and a separate Manhattan case involving hush money payments to a porn star.

Christopher M. Kise, an attorney on Mr. Trump’s broader team who is licensed in Florida, and Lindsey Halligan, who is also licensed there and met with Justice Department officials shortly before the indictment was filed, are also possibilities, a person said close to his team.

A wild card is the way arguments are handled by Aileen M. Cannon, the Florida federal judge assigned to the case who ruled favorably for Mr. Trump at an earlier stage of the investigation.

Yet the evidence in the indictment itself is perhaps the most terrifying problem Trump faces, regardless of the legal team.

Over the weekend, a former attorney for Trump, Timothy Parlatore, and a man who once served him as attorney general, William P. Barr, both appeared on television and flatly stated that the 38 charges against Trump and one of his aides were extremely thorough. and posed a serious threat to the former president.

Citing a conservative legal expert writing for The National Review, Mr. Barr that if even half of the allegations in it were true, Mr. Trump “toast”.

“It’s a very detailed indictment, and it’s very, very damning,” Mr Barr told Fox News Sunday.

Many of the tactics available for Mr. Trump’s defense have drawbacks.

For months, as Mr Smith’s prosecutors investigated the documents case, Mr Trump’s lawyers and aides have insisted that the former president could get any documents he wanted from the White House under the Presidential Records Act — a misrepresentation. of actual Watergate-era law. .

Mr. Barr brushed aside that argument about Fox, calling it “on the face of it ridiculous.”

“It’s the government records, they’re official records,” Mr. Barr said. “It’s not his personal records. Battle plans for an attack on another country or Defense Department documents about our capabilities are not the personal documents of Donald J. Trump in any universe.

Mr. Trump and his advisers have also repeatedly filed a separate claim: that he cannot be held responsible for carrying sensitive data at Mar-a-Lago, his Florida private club and residence, or on any other property he owns because he released everything before he left office.

To the dismay of some of his lawyers, Mr. Trump has sometimes said he could declassify documents automatically, even with his mind.

But a recording of him named in the indictment undermines that claim.

In the recording, Mr. Trump can be heard telling visitors to his Bedminster, NJ, golf club that he wanted to show them a “highly confidential” military plan, but he couldn’t because it was “secret.” He then apparently admits that the document remained secret — undermining the idea that he released everything he owned — and suggests the limits of his own powers to release documents as a former president.

“Look, as president I could have declassified it,” he says. “Now I can’t.”

Several legal experts said Mr Trump’s lawyers were likely to file a so-called selective prosecution motion, claiming that Mr Trump had been unfairly charged when other politicians under investigation for their own handling of classified documents – most notably Hillary Clinton – had not . .

Mr Buell called any attempt to make such comparisons “a total loser”, noting that Mr Trump’s case involved a large number of classified documents and significant evidence of obstruction – neither of which came up in the investigation into Mrs. Clinton.

Yet said Mr. Buell that the lawyers could only file a selective prosecution claim for PR purposes.

“The politics are such that they will probably bring the motion,” he said.

Another motion Mr Trump’s lawyers could try — and one Mr Buell said would be hard to win — is a motion alleging that the grand jury trial that led to the indictment somehow manner was marred by the prosecution’s misconduct.

Mr. Trump’s legal team has already filed a sealed motion in Federal District Court in Washington, where the investigation began, requesting all grand jury transcripts, to look for examples of prosecutors who abused the grand jury, according to a person familiar with the matter.

However, that motion may have been challenged after a Florida grand jury voted on the indictment. And, as Mr. Buell said, the normal remedy for grand jury misconduct is to discipline all attorneys involved, not to issue an indictment.

Two people familiar with Mr Trump’s legal strategy said his lawyers could file a motion to expunge notes attorney M. Evan Corcoran made of his conversations with the former president about helping to comply with a May 2022 federal subpoena demanding restitution from Trump. all secret documents in his possession.

The notes, some of which were recorded by Mr. Corcoran on his iPhone and show Mr. Trump’s repeated attempts to evade the subpoena, resulted in some of the most damaging evidence in the indictment.

Rachel Barkow, a professor at New York University School of Law, said Trump’s lawyers may have better luck with this motion than any of the others. However, she cautioned that the ultimate success of the tactic would depend on the strength of Washington Judge Beryl A. Howell’s initial sealed decision to leave the notes in the case through a provision known as the crime-fraud exception.

In a memo explaining why she overruled typical attorney-client privilege protections and allowed prosecutors access to the notes, Judge Howell said Mr Trump likely misled Mr Corcoran about the steps he took to comply with the subpoena comply. She added that the government had made a “prima facie” showing that Mr Trump had committed a criminal offence, according to a person briefed on what she wrote.

Among the evidence Judge Howell considered in her ruling was a transcript of the audio notes Mr Corcoran took describing the work he had done last June to respond to the subpoena, a key period for investigators, according to the person who was briefed on what she wrote. The judge reviewed the notes privately before deciding whether to turn them over to prosecutors.

Mr. Trump unsuccessfully fought Mr. Corcoran to produce his notes — or testify before a grand jury. Mr Corcoran, who was not charged with wrongdoing, argued against releasing some of the notes because they qualified as an ‘opinion work product’, meaning his own impressions and legal theories related to the case; prosecutors and the judge agreed.

Even if none of these attempts to derail the charges work, they could still sufficiently delay the case until after the election, Ms Barkow said. And if Mr. Trump won, he could have his new attorney general drop the case or maybe even pardon it.

“I don’t think we will resolve this matter before the election,” she said, “and so the election may eventually resolve it.”