Is Trump Any Closer To Being Indicted And Tried?

Saturday May Be Freaky In New Hampshire Because Gov. Chris Sununu Said “We Have to Move On From Trump”

Trump’s circus this coming Saturday will be awkward enough, with loads of GOP elected officials avoiding it (and Trump's stench), but now it turns out Trump will humiliate himself earlier in the day when he gives a keynote speech at the annual New Hampshire Republican Party meeting.

Sununu is far more popular in New Hampshire than Trump is, more popular enough for him have noted last April that Trump is “fucking crazy.” It didn’t hurt Sununu’s reelection efforts at all— quite the contrary. Remember, Trump lost New Hampshire both times he ran. In 2020, Biden beat him 52.7% to 45.4%. Two years later, Sununu trounced his Democratic opponent, while all of the Trump-backed candidates failed miserably, thousands of Sununu's voters chosing not to cast ballots for them.

• Sununu (R) beat Tom Sherman (D) 57.1% to 41.6%

• Maggie Hassan (D) beat Don Bolduc (MAGA) 53.5% to 44.5%

• Chris Pappas (D) beat Karoline Leavitt (MAGA) 54.1% to 45.9%

• Ann Kuster (D) beat Robert Burns (MAGA) 55.9% to 44.1%.

No doubt Trump will get a rousing welcome among the state’s Republicans. The problem inNew Hampshire is that while hard right extremism is popular with the GOP base, it’s anathema among the independents and moderates who decide elections in the state. But Trump will have a lot more to think about than Sununu calling him names and independents rejecting him and his candidates. The clock is ticking on his likely indictment… and David Graham has a guide for people looking forward to it— as well as for those dreading it.

Graham thinks an indictment could come down as soon as this month. “[M]any legal experts,” he wrote, “think that prosecutors have grounds to charge him and will… [T]he mountains of evidence already before the public— about Trump’s attempt to overturn the 2020 election, about his handling of government documents, and about his previous interactions with the justice system— suggest a fierce conflict to come. ‘He has learned that due process is the Achilles’ heel of liberal democracy,’ Paul Rosenzweig, a former federal prosecutor, told me. ‘He’s weaponized the court systems all of his life.’” Graham speculated about what could happen in the 3 pending cases.

The first shoe to drop will probably be in Atlanta, where Fulton County district attorney Fani Willis has been looking into Trump’s attempt to overturn the Georgia election results. “The grand jury’s work is secret, but it has reportedly interviewed dozens of people, including Senator Lindsey Graham and the former Trump lawyer Rudy Giuliani. Willis appears to be interested not only in Trump’s pressure campaign against Raffensperger but also in a slate of fake electors who gathered in Georgia, and in various claims that Trump allies made about supposed election fraud. We should know more tomorrow when Judge Robert McBurney has scheduled a hearing.

Trump’s theft of top secret documents and, more important, his refusal to hand them over will probably be the second case to yield an indictment. This is a very straight forward case and it’s hard to imagine a scenario in which Trump is not charged by special counsel Jack Smith.

The big one is on his role in the attempted coup. In a just system he would have been executed for treason by now. Graham called it “The most interesting case, and perhaps the most consequential for American democracy… Delivering on that potential will not be easy. The scope is enormous: fake electors, the Justice Department mutiny, the actual January 6 riot, the pressure campaign against Mike Pence, and more, all united by the goal of keeping Trump in power despite the outcome of the election in Biden’s favor. Although the House committee uncovered a great deal of evidence, some of it is hearsay and thus not admissible in court, and although in common parlance Trump is clearly to blame, securing a conviction is still tough.”

If Smith decides that charges are merited, he could try for a sweeping case— the better to punish the scope of the behavior— or go for something more targeted, which might feel less cathartic but be more likely to end with a conviction. He also has to consider the possible risks of a federal prosecution. “If you ask my opinion, I would say the substantial federal interest in protecting the lawful transfer of presidential power exceeds any collateral consequence,” [Barbara] McQuade said. “How egregious does it have to be before you charge a former president? I would draw the line somewhere before inciting an insurrection.”

Smith also has to watch the clock. On January 20, 2025, a new president could take office— possibly a Republican, perhaps even Trump— which would likely spell the end of any case against him. But Rosenzweig said Trump’s continued presence amplifies the need for accountability too. “If Trump had gone away and faded from the scene, we’d probably let him get away. The specter of indicting a former president is just too terrible,” he said. “But he and his party have made January 6 a rallying cry, and that is going to make it harder to say no.”

…Say one of these prosecutors does indict the former president of the United States. What happens next? Some answers are pretty clear; the really big ones are not.

If Trump is indicted, he’ll have to be booked and fingerprinted like any other defendant, whether that’s at the Fulton County jail or some federal courthouse. Don’t expect a dramatic perp walk with windbreakered FBI agents leading him, though. Trump’s lawyers would likely arrange a time for him to come in, and bail conditions would be agreed upon ahead of time, but he’d have to appear before a judge. Then would come a seemingly endless slog of procedural motions, legal maneuvers, and discovery— all elongated as much as possible by the defense to run out the clock, exhaust the government, or find weaknesses, and all appealed as often and as high as possible.

If a prosecutor actually managed to get to trial, they would then have the huge task of convicting Trump. Few will bring cases they don’t think they can win, but nothing is a sure bet. Even something as plain Trump’s call to Raffensperger might play differently in court, Titus Nichols, a defense attorney and former prosecutor in Georgia who represented the whistleblower Reality Winner, told me. “If a regular person had done that, they’d be indicted, no question,” he said. “When you’re a person with resources or you’re famous, then everyone wants to give you the benefit of the doubt.” Prosecutors might also manage to convict some lower-level players but not Trump.

If Trump is indicted and convicted, the charges are ones that could very well lead to incarceration, as Willis herself has noted. “If someone were convicted of one of these serious crimes, a prison sentence would be likely,” McQuade told me. But other observers think it’s doubtful that Trump will ever see the inside of a jail cell, given the complications and the length of probable appeals.

All of these considerations make for nearly impossible decisions for prosecutors. When I joked to Rosenzweig that he didn’t sound like he envied Jack Smith, he quickly corrected me. “I do envy him, in that he’s got a really exciting and interesting job, but I would not want to be him or Merrick Garland,” he said. “They’re damned if they do and damned if they don’t. Trump has broken the system, and there are no good choices.” For Garland and Smith— and Willis, too— the task is to find the least bad option, and then pursue it with care.