It’ll Take More Than an Indictment to Make Donald Trump Face Justice

Special counsel Jack Smith has brought charges against former president Donald Trump, breaking the string of federal prosecutors without the courage or commitment to justice to prosecute Trump for the many crimes he’s committed in plain sight. The 37-count indictment handed down by a Miami grand jury deals with Trump’s alleged mishandling of sensitive documents. I fear that Smith would be an updated version of Bob Mueller, but this indictment puts those concerns to rest. I’m happy to have been wrong about him. As near as I can tell, no punches were pulled, and Trump was given no special treatment. Trump has been charged under the Espionage Act with willful retention of national defense information, conspiracy to obstruct justice, and making false statements to criminal investigators. Trump is in more legal jeopardy now than he has been at any time in his corrupt life.

Unlike the charges brought against Trump by Manhattan District Attorney Alvin Bragg, Smith’s charges could very well land Trump in jail, he should be convicted. This is like getting Al Capone for tax evasion, and I mean that in a good way: These are serious federal charges, and while they focus on Trump’s crimes against documents as opposed to his crimes against democracy, they still have plenty of teeth (charges against Trump for his crimes against democracy could still be coming, as Smith’s investigation of January 6 is ongoing). If Trump winds up in prison, I don’t think most people will care that he’s in there for storing national security secrets in his gaudy bathroom as opposed to sexually assaulting women or trying to have Mike Pence assassinated. You can’t always get what you want, but sometimes you get what you need.

Unfortunately, standing between Trump and the federal penitentiary he so richly deserves is Trump-appointed MAGA judge Aileen Cannon and the 2024 presidential election. Either of those factors could save Trump from his doom, even though Smith had enough evidence to put him away.

Cannon, the Florida district court judge picked to president on this coming Tuesday over the arrangement of Trump on these charges, is the most obvious problem, though potentially not in the way people think. People remember Cannon from her unethical decision to appoint a special master in this very case; she had tapped the special master to determine whether Trump had executive privilege over documents he had no right to claim executive privilege over. Cannon’s nonsensical ruling was overturned by the US Court of Appeals for the 11th Circuit, but she’s already exposed herself as a hack. People rightly fear a series of pro-Trump rulings from a biased judge who will put her thumb on the scales in favor of the man who appointed her.

A trial judge has a lot of power, including the tactical nuke of “Rule 29,” which allows a trial judge to ignore a jury verdict as a matter of law. That means, technically, that Trump could have tried and proven by a jury, and Cannon could just say “no” and order him free. However, I think it is unlikely that Cannon would go that far. As my former colleague at Above the Law have noted, Cannon is a hack, but maybe also a coward.

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