Donald Trump now has a clear idea of the magnitude of the legal peril he faces after he was indicted in the two outstanding major cases against him. Unlike the first two indictments—hush money payments to a porn star during his 2016 election campaign, and his handling of classified documents at his private estates—the latest two indictments deal directly with his conduct while President of the United States. They also revolve around his attempts to overthrow the 2020 presidential election results. Trump now faces a staggering total of 91 felony charges.
On August 1st Trump was officially indicted by federal prosecutor Jack Smith in his attempts to change the results of the 2020 election. Trump turned himself in for arrest—his third—two days later. He was charged with conspiracy to violate civil rights, conspiracy to defraud the government, the corrupt obstruction of an official proceeding, and conspiracy to carry out such obstruction.
Jack Smith gravely stated at a press conference, “The attack on our nation’s Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. It was fueled by lies, lies by the defendant targeted at obstructing a bedrock function of the U.S. government—the nation’s process of collecting, counting, and certifying the results of the presidential election.”
The other shoe to drop came on August 14th, when Trump, along with 18 others, were indicted in Georgia on racketeering charges in their efforts to overturn the 2020 election results in the state. Included in the list of the indicted were longtime Trump aids Rudy Giuliani and former chief of staff Mark Meadows. The prosecutor, Fani Willis, offered no special privileges for the defendants during their arrests. All, including former president Trump, had mug shots taken upon their arrest at the Fulton County Jail in Atlanta.
The 98-page indictment stated, “Trump and the other defendants charged in this indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.”
The Georgia indictment may be the most worrisome to Trump. Unlike the federal indictments, the Georgia indictment cannot be pardoned if he is convicted since it is a state crime. In fact, any possibility of a pardon can only come about after the original punishment is carried out, and even then, a number of years have to pass. Not even a Georgia governor has the power to immediately pardon. The charges in Georgia are much more serious than the charges brought against Trump in New York. Racketeering charges in Georgia include a mandatory minimum prison time of five years with a maximum of 20 years.
The Race to a Second Presidential Term
Trump famously once said while campaigning for his first term as president, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” He could say the same thing about his indictments too. Trump, who is running for a second term, has received a bump in his polling numbers after every indictment. Currently, Trump leads the GOP nomination pack by over 44 points nationally with 55.4 percent in the latest Real Clear Politics polling average. Despite his lead, Trump has deep anxieties because of his legal woes. Winning a second presidential term might be the only thing standing between him and prison time. The stakes are so high for Trump he announced he would not be participating in any of the formal televised debates. This is certainly a calculation to not put himself in a position where a disastrous performance could harm his vast polling lead.
When it comes to his looming trials, his strategy is delay, delay, delay. The longer he can delay the trials, the more he can argue the trials are interfering with a presidential election. Prosecutors, while being mindful of the right to a fair trial, are trying to begin proceedings as soon as reasonably allowed. Jack Smith said it is reasonable to begin his trial over Trump’s participation in the events surrounding January 6th as soon as January 2nd, 2024. Trump’s legal team immediately pushed back and requested the trial begin no sooner than April, of 2026. Most legal experts scoffed at such a far-flung date. Currently, it appears likely that Trump will be spending much of the first part of 2024 defending himself in court in one trial or the next during the crucial primary season. The prosecutors behind the various indictments seem flexible behind which trial should begin first, with Jack Smith’s prosecution of Trump over January 6th likely to be the first to be scheduled. Fani Willis said she is fine for holding her trial last. Even still, the prosecution of a major candidate for president is uncharted waters. Trump will try to use this to his advantage.
Constitutional Arguments
After the January 6th riots that threatened to subvert American democracy by throwing out the 2020 election results, many called the act an insurrection. With Trump the seeming ringleader of that insurrection there were questions if he would be automatically disbarred from running for any federal office again. These arguments have been gaining ground as the 2024 election takes shape, and its not from the corners that those who support Trump would suspect.
On August 14th, the same day Trump was indicted in Georgia, two legal experts from the conservative Federalist Society released a paper arguing that Trump is disqualified from becoming president again. The paper’s authors, William Baude and Michael Stokes Paulson, argue, “Donald Trump cannot be president—cannot run for president, cannot become president, cannot hold office—unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.” They cite Section 3, of the Fourteenth Amendment of the Constitution which states:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Others have also come to the same legal conclusion. On August 19th, Harvard Law professor Laurence Tribe and former federal appellate judge and conservative Michael Luttig published an article in The Atlantic magazine coming to the same conclusions as the paper by Buade and Paulson. Tribe told CNN, “The people who wrote the 14th Amendment were not fools. They realized that if those people who tried to overturn the country, who tried to get rid of our peaceful transitions of power are again put in power, that would be the end of the nation, the end of democracy.”
Given the constitutional arguments that Trump is disqualified from seeking another term as president, it is likely legal challenges will appear contesting ballots Trump might appear on. Given the weight of the subject matter, it is likely the Supreme Court would get the ultimate say.
Being a Victim
As someone whose best hope of staying out of jail is by winning the presidency once again, Trump’s chances seem slim. He has found himself in a situation of his own creation. Unlike the image he portrays—that he is the victim of a conspiracy by a vaguely defined establishment out to get him—Trump created these problems himself. No one forced him to cheat on his wife with a porn star and pay for her silence (this is a fact that has legally been established, the indictment is over where the money he used came from). He could have easily turned over the classified documents when the National Archives asked him to (which it is well established they did repeatedly). Trump could have easily accepted the results of the 2020 election after his court challenges failed like Al Gore did in 2000. His supporters would have understood, and he would have been in a better position to run for office again than the current situation he finds himself in. These are all choices Trump made. And in every case he made bad choices, and choices that drove a wedge deeper into the American social and democratic system—testing it like it has never been tested before.
The playing victim trick can only be used but so many times. There is the sense the tide in the GOP is changing despite Trump’s lead in the polls. A poll published on August 3rd could be telling. It showed that half of Republicans would not vote for Trump if he were convicted of a felony. More than anything, the poll’s result show that Republicans for the first time in a long time, are seriously thinking about a party without Donald Trump at its head. Clark Neily, senior vice president for legal studies at the Cato Institute, articulated what Republicans are likely afraid to say openly with his latest blog post, “Trump’s Toast, Folks.”
