Trump campaigning for 'Get Out of Jail Free' card

The prospect of a trial by jury in the Southern District of Florida looms over Donald Trump. He has been indicted on a charge of illegal possession of national defense documents and obstructing federal attempts to regain them. The former president's attorney general William Barr told Fox News that Trump was "toast" if even half of the 37 counts in the indictment are true.

Not so fast.

Trump does seem to recognize he is unlikely to be acquitted on all counts by a South Florida jury. So he is seeking a not-guilty ruling from an altogether different jury.

In a Florida courtroom, Trump would face evidence of flagrant lawbreaking backed by photographs, texts and witnesses galore. He has appeared to admit his own guilt. In an interview on Fox, he claimed to have been too busy to return the classified materials in his possession. And in a recording disclosed by CNN, he sure seemed to acknowledge possession of a classified document dealing with potential U.S. action against Iran.

What's at stake for Trump in the trial? When a former National Security Agency contractor stole a "breathtaking" amount of top-secret information, he received a prison sentence of nine years. If the court metes out the same sentence to 77-year-old Trump (37 counts!), he could die in prison. Moreover, the DOJ guidelines say a judge can consider "whether the defendant has expressed regret for the crime" in handing down any sentence. Trump most certainly has not. Instead, after his booking, he denounced the indictments as no more than "a boxes hoax."

So Trump is following his usual path - when he can't win, he changes the rules. He will take his case and seek amnesty from a jury consisting not of 12 people "good and true" but from a jury of around 150 million likely voters. If they elect him president in November 2024, he can simply instruct the Justice Department to drop any and all counts against him once he takes office. Even if already found guilty in a trial court, he can order the Justice Department not to oppose his appeals.

But wait a minute. The judge scheduled the trial to begin in August, the month after next. Isn't that plenty of time for a verdict before the presidential election? No. The prosecution has already asked for a delay until December because the case involves classified information. Defense attorneys will need to obtain the requisite clearances. Motions on the admissibility of that information will involve the Classified Information Procedures Act, which the prosecution acknowledges "will inject additional time into the lead-up to trial." That understates matters. A case under CIPA rules will be filled with as many delays, motions and appeals as the Trump defense team can come up with. (Note: I was an author of the CIPA legislation when counsel to the Senate Intelligence Committee.)

So, as the Justice Department seeks a win in federal court, Trump seeks a win at the ballot box. If the odds are stacked against him in the courtroom, are his odds better at the ballot box? According to a recent NBC poll conducted after Trump's indictment, he extended his lead from 15% to 29% over the second-place candidate for the Republican nomination. The same poll found that in a head-to-head match against President Joe Biden, Trump trails by only four points - within the margin of error. Remember, too, that he lost to Hillary Clinton by 2% and still carried the Electoral College. No wonder he likes the odds better at the ballot box.

What about the case Trump faces in New York for hiding a payoff to alleged sexual partner Stormy Daniels and the likely case in Atlanta for illegal interference in the 2020 presidential election? Because these are state cases, a victorious presidential campaign would also provide Trump with a Get Out Of Jail Free card. A 1997 Supreme Court decision implies a state criminal prosecution of a sitting president would raise federalism concerns. In a recent interview, University of Virginia law school professor Saikrishna B. Prakash explained the Justice Department believes a state cannot put a serving president in jail because the Constitution would not allow a state prosecutor "to incapacitate the chief executive."

In sum, Trump's defense against the 37-count indictment is two-pronged - delay in the courtroom and attack on the campaign trail. "We're warriors in a righteous campaign," Trump told the crowd at the Faith and Freedom Coalition last Saturday. "Every time the radical left Democrats, Marxist, communists and fascists indict me, I consider it a great badge of courage." In an appearance in Michigan the next day, he declared, "They wanna take away my freedom because I will never let them take away your freedom." For Trump, the great advantage of a political campaign over a courtroom trial is that contrary evidence can be ignored.

Back on June 22, 2016, in a New York City campaign speech, candidate Trump proclaimed, "The voters are the jury. Their ballots are the verdict." He's acting on that belief still.

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