Anyone reading this diary has, by now, read the many stories describing ‘clear evidence of Trump committing crime X or Y’. Most likely, for an ordinary person, committing a fraction of the crimes Trump did would have had the key thrown away by now. However, it is important to note that the facts of a crime, or even a criminal indictment and arrest, are only part of the story. For justice to be served, there needs to be a conviction, and that is a bit harder. I’ve identified four major problems that any prosecution of Trump will need to wade through. I am sure this isn’t an exhaustive list, but here are some key points to consider:
Republican Complicity
Trump didn’t try to sell out the country on his own during the 2016 campaign season, and he wasn’t alone in arranging for a violent coup attempt to end democracy on Jan 6 2021. And this leads to a potential problem for prosecution of the conspiracy and supporting crimes. A surprising swath of the republican party can be subject to criminal indictment as well.
At least two republican senators are likely involved (Hawley, Grassley), and there are the issues with recon ‘tours of the capital. Working down the chain, there are state legislators, and high ranking party officials who were in positions of support. All of those people had senior staff, communicated via email, and used bank accounts to pay for things.
As narrowly split the balance of legislative power and highly polarized the electorate, even a small amount of ‘collateral political damage’ could tip the scales in the midterms or 2024. If party and PAC accounts are seized and lots of organizing talent goes down, the effects could be catastrophic in some swing states. At the long end, we could be back to the 2018 discussions of the ‘entire republican party is a criminal enterprise’.
What this means is that any republicans in the DoJ are going to be facing a rather harsh choice. Justice demands that they sacrifice the political party they support. Some will not be patriotic enough to make the right choice, and that puts the DoJ staff in a tough spot to have to work against some of their own. For any DoJ staff that have fallen hard to the MAGA, the damage they could do is almost incalculable as the ultimate insider.
Physical Security
The Jan 6th insurrection and attempted coup certainly wasn’t the only thing that the Trump Mob was prepared to engage in, and it is silly to think that they will just stand back and stand by while their dear leader is indicted. Physical security for the court, the jurors, and lawyers will be a major concern.
Even neglecting the risk of a ‘jailbreak of the century’, the risk of riots and civil disruption in whichever city draws the short straw would be a challenge. If jurors are doxxed and start facing threats and second amendment protestors and you could compromise the validity of the trial itself. Oh, and all it takes is one Q-Nut cop on escort duty who decides to leak some juror identities to ruin the security situation. Hell, a Q-nut or J6er Juror might out other jurors.
Look at the drumbeat of diaries on this very site showing 3 percenters, proud boys, and other white supremacist or trump militia types in law enforcement. Any security plan for the prosecution of Trump needs to account for the fact that the very people being trusted to maintain security and order may be sympathetic to the defendant to actively working for the wrong side. That thought is chilling.
Jury Nullification
Recall that, depending on jurisdiction, it requires either a unanimous vote or a large super majority (such as 10 out of 12) to convict. Regardless of the evidence and questions of law, if the jury acquits then that is that. It only takes one or two implacable MAGAs on the jury who refuse to vote anything but ‘not guilty’ to drive the trial process back to square one with a hung jury.
Risks of riots and intimidation deepen issue. If the security and threat situation deteriorates badly enough, even a ‘normal’ jury might be intimidated into turning in an outright acquittal. And when you look at the point of failure for a jury alone is two who can be intimidated, or a single judge, the prospect is scary.
Jury selection would also be an absolute nightmare, since odds are in most places within the country, 1 in 12 random people could very well be a hardcore MAGA. How do you go about sifting the population to find people who can be ‘impartial’?
Double Jeopardy and Lawfare
Separate for a moment, the idea that any trial of Trump will be a media circus. Even if Trump and his defense team are barred from the trial, Faux News is going to wall-to-wall the damn thing with misinformation. That’s a given.
Instead start with the point that if a jury acquits, that’s it. You can’t prosecute for the same crime again. Even if the jury process is tainted by overwhelming error, bribery, or intimidation, or reversible violation of process. If dirty tricks on the part of the defense to tamper with the jury work, then it is game over for the prosecution. Ordinarily, with less polarizing cases and a functioning system this is less of an issue, but with Trump and his supporters, this creates a strong incentive to pull out all the stops.
There is a similar challenge if an appeal dismisses the case with prejudice attached. In the second case, you’re looking at the prospect of appealing (probably all the way to the supreme court) for even the right to conduct the trial and overrule the judge’s dismissal. Incentive to put pressure on the judge.
Beyond these incentives, the prosecution team must contend with the unprecedented nature of the prosecution, with plenty of areas that are (or can be marketed as) unsettled law. Whether in front of the trial judge or ‘emergency appeals’ during the trial, the prosecution team will face a deluge of challenges to every legal judgement call that they make. For high profile cases and aggressive defense teams, this can be somewhat expected. However, by adding in appeals courts to the mix with the unstable and politically charged environment, there is a real chance of simple meddling or griefing of the prosecution strategy.
Conclusion
The criminal saga of the Trump cult has laid bare the same fundamental weakness of all societies. Institutions can be corrupted or undermined. When the institutions used to fight corruption are themselves corrupted, relying on those same institutions becomes challenging in the extreme. The hardest problem isn’t getting evidence of Trump’s guilt, that is plain enough. The problem is getting through the trial process to a conviction. Nobody has to like it, but it is the reality everyone faces.