Lock him up!

How the courts will deal with indicted Donald Trump

Opinion by Jennifer Rodgers

It finally happened. After multiple investigations over half a dozen years, former President Donald Trump has been indicted by a grand jury in New York, according to sources familiar with the matter. Trump fired back, calling the indictment “political persecution” and warned “this Witch-Hunt” will backfire.

Though we not yet know the details of the charges, we do know that Manhattan District Attorney Alvin Bragg had been investigating Trump in connection with his alleged role in a hush money cover-up scheme involving adult film star Stormy Daniels during his 2016 presidential campaign.

Not only is this the first time that Trump has been criminally charged, it is the first time any former president has been criminally charged. As such, we are entering uncharted territory.

It should be evident that no one is above the law, and that Trump should be held accountable for his actions in the way that any other citizen would be. These charges represent the first step toward accountability, but the journey will be long and winding.

A threshold question is whether this indictment will have any impact on Trump’s declared candidacy for the presidency in 2024. Legally, the answer is no.

Trump can continue as a presidential candidate while a criminal defendant, and even if the case results in conviction before the election, because the federal constitution sets the qualifications for the presidency – and it does not include anything about a criminal record or pending charges. At the Conservative Political Action Committee in March, Trump confirmed as much, saying he would stay in the race even if he were indicted by federal or state authorities while running again.

Of course, running a campaign while facing charges will be politically and logistically challenging, to say the least. Any requests for delays in the litigation schedule to accommodate campaigning, debates or other election-related events will be heard and decided by the assigned judge, who controls the case calendar, but it’s difficult to imagine a judge granting significant delays for this purpose.

And if Trump is convicted and sentenced to prison before the election (or after winning it but before he takes office), his inability to fulfill the duties of the office may prompt efforts to remove him. For the time being, however, Trump can continue as a candidate if he so chooses.

Now that he has been indicted, what should we expect in the coming months?

The first steps are for Trump to be formally arrested and brought to court to be arraigned on the indictment. During that hearing, the court will address issues like bail and the setting of a preliminary hearing date, if necessary, to determine whether prosecutors have amassed enough evidence to move forward to trial.

I expect that Trump’s lawyers will agree to a voluntary surrender in Manhattan, instead of forcing officials to coordinate an arrest with local law enforcement in Florida – and for Trump to be released pending trial. But this is where the agreements between prosecutors and the former president’s counsel likely end.

As Trump has demonstrated again and again, he is well versed in using the legal system to delay, and sometimes to evade, consequences. Given that the Manhattan indictment is one of the most perilous situations Trump has ever faced, we should anticipate that the former president will be aggressive in fighting these charges.

An early decision point for Trump and his lawyers is whether they will seek a preliminary hearing at which prosecutors would be required to present evidence establishing probable cause—namely, a reasonable basis to believe that a crime has been committed.

On the one hand, such a hearing forces the prosecutors to reveal some of their evidence, which can help the Trump team evaluate the case and make a plan for how to defend it. On the other hand, the benefit of that sneak peek is limited, because prosecutors must only present enough evidence to meet the relatively low legal threshold, which they can likely do without revealing much of the non-public evidence that has been collected.

Instead, the former president may prefer to go on the offensive right away in an effort to gain strategic advantages and shape the narrative of the case. For example, Trump could assert a long list of arguments and substantive defenses as the litigation proceeds that may extend the runway to trial.

Some claims, like the suggestion recently made by Trump’s lawyer that the then-presidential candidate paid Daniels not to benefit his campaign, but to avoid personal embarrassment, are questions of fact for the jury and can be resolved at trial without the need for pretrial litigation.

But some issues may generate the need for judicial scrutiny, like Trump’s expected allegations of prosecutorial misconduct and selective prosecution, Trump’s possible reliance on an advice of counsel defense and Trump’s likely legal challenges to the prosecutor’s theory of the case.

Our legal system is governed by precedent and replete with opportunities for defendants to litigate and appeal many of the issues that Trump will surely advance. In particular, Trump’s likely claims relying on his status as the former president mean that the New York judges involved will be considering matters that are as yet unresolved by courts. Taken together, all of this will stretch out the time it takes for courts to deliberate and rule on these claims.

Trump’s scorched-earth approach very well may involve filing separate legal challenges, as happened when the Justice Department conducted its search of Mar-a-Lago for classified documents last year and Trump asked for a special master to screen any seized documents.

That move ultimately failed, but it set back the investigation for months while a special master conducted an entirely unnecessary review of documents before the appellate court reversed Judge Aileen Cannon’s legally problematic ruling.

What will also factor in is Trump’s practice of litigating and appealing everything as far as he can, in order to delay and, if possible, derail, the proceedings. For example, Trump eventually lost his bid to stop his accounting firm from turning over financial records to the Manhattan District Attorney as part of a separate criminal probe, but the litigation, which Trump appealed to the US Supreme Court, cost investigators 18 months.

If Trump’s delay tactics succeed in pushing the trial into 2025 and, in the meantime, he manages to win the 2024 election, expect him to argue that the case against him must be dismissed as unconstitutional based on the Justice Department’s 2000 guidance that a president cannot be indicted “or tried” while in office.

When you put these factors all together, it’s a recipe for significantly protracted, and legally challenging, proceedings. That’s not to say that these charges will not eventually result in a trial of Trump. But while accountability may be coming, it will neither be swift nor easy.