[ Although Special Counsel Jack Smith has brought a strong case,
he still faces significant challenges.]
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THE THREE BIGGEST OBSTACLES TO CONVICTING TRUMP  
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Paul Rosenzweig
June 11, 2023
The Atlantic
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_ Although Special Counsel Jack Smith has brought a strong case, he
still faces significant challenges. _

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Donald Trump has been indicted on 37 felony counts related to his
theft of classified documents and his obstruction of the investigation
into that security breach. Now comes the hard part: trying the case.

Prosecutors often talk of the “cruel dilemma” they face: If they
secure the conviction of a charged defendant, they are “just doing
their job” and merit no substantial credit; if they indict and fail
to secure that conviction, they have somehow messed up.

To a large degree, this description is accurate. In a run-of-the-mill
criminal case, notwithstanding the formal presumption of innocence,
the prosecutor comes into the trial with a host of procedural and
substantive advantages. In these routine cases, to lose is truly to
err.

Not so with the case against Trump. Though the special counsel, Jack
Smith, begins the proceedings with some significant pluses, he faces a
much tougher road than prosecutors typically do. There is a
more-than-reasonable possibility that Trump will never be convicted of
the crimes with which he has been charged.

Smith’s most notable advantage is the factual strength of his case.
In his speaking indictment (or, as Norm Eisen of the Brookings
Institution called it, his “shouting” indictment
[[link removed]]), Smith
laid out the case against Trump in stark detail. To take but one
example, the Espionage Act
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“willful retention” of national-defense information. In a
recording of his own voice, Trump admits to almost all of the
essential elements of the criminal charge—that he has a document in
his possession; that he knows it is national-defense information
(involving a plan for an attack on a foreign nation); that he knows it
is still classified; that he knows he can’t declassify it.

The indictment is replete with examples of the stunning depth and
texture of Smith’s evidence. It references, for example, multiple
text messages in which Trump’s co-defendant, Waltine Nauta, and
other Trump employees discussed how the boxes containing classified
documents were being handled at Trump’s express direction. It also
references surveillance-camera footage showing Nauta removing boxes
from a storage area before that area was to be canvassed for
classified information. And it goes into painful detail about how
Trump misled his own attorneys into falsely certifying that the search
for classified documents was complete, and how he attempted to
persuade one attorney to lie for him by removing particularly damning
classified documents from the set he was going to produce to the
government.

Smith’s case is also significantly bolstered by the underlying
seriousness of the charges. Though Trump has tried to minimize the
consequence of the papers he retained, and though the contents of the
documents are not yet, and may never be, public, the description Smith
has offered—documents “regarding defense and weapons capabilities
of both the United States and foreign countries; United States nuclear
programs; potential vulnerabilities of the United States and its
allies to military attack; and plans for possible retaliation in
response to a foreign attack”—is chilling. Trump’s casualness in
storing such important materials (and his apparent willingness to
share some details contained in them with authors and one of his PAC
employees) will surely be viewed skeptically by the jury when the
matter goes to trial.

In any other circumstances, given the weight of this evidence, the
case would be a slam dunk. But in the current state of affairs, the
case is more aptly characterized as a difficult contested shot from
beyond the three-point arc.

To begin with, Smith was exceedingly unlucky in his drawing of a
judge. The case was assigned to Judge Aileen Cannon, the same judge
whose interference in the original search of Mar-a-Lago was roundly
criticized and rejected by the Eleventh Circuit (the appellate court
that oversees her district). Her past rulings suggest that her
instincts will favor Trump. Federal district judges have substantial
discretion in the conduct of trials, and so their underlying
proclivities can matter.

To take one extreme example, consider the impact of Federal Rule of
Criminal Procedure 29(a)
[[link removed]]. This
rule—obscure to most Americans, though well known in the
criminal-defense bar—gives a federal judge the power to dismiss a
prosecutor’s case at the end of the prosecutor’s presentation on a
finding that the government has not presented sufficient evidence from
which a jury could find guilt beyond a reasonable doubt. This broad
discretion is rarely used, because it allows a judge to substitute
their own judgment for that of the jury. But it does exist and, more
important for our purposes, it is completely unreviewable. For reasons
of double jeopardy, if a judge dismisses a case at the close of the
prosecutor’s presentation, that’s the end of it. One does not have
to be completely Machiavellian to see in this power the prospect of
judicial interference and disruption.

But we need not have anywhere near so dystopian a view of judges to
worry about how one might conduct a trial. (And, to be clear, I have
no reason to think that Judge Cannon would, in fact, use Rule 29[a] in
an inappropriate manner). There are ample other ways, well within the
bounds of discretion, in which a judge might affect the trial of a
case. Consider just two more.

Within certain boundaries, trial judges have almost unreviewable
discretion to determine what evidence will, and will not, be presented
to a jury. Often, judges use that authority to trim frivolous defense
arguments. Sovereign-tax protesters, for example, are not allowed to
offer evidence that they think shows that the U.S. government is not
constitutionally authorized to impose an income tax. Nonsense
arguments like that are simply ruled out of bounds.

Many of Trump’s defenses to the espionage charges border on
frivolous. The “I can declassify a document just by thinking about
it” and the “I’m entitled to keep whatever documents I want from
my presidency” defenses genuinely have no legal basis. Many judges
would, quite properly, exclude testimony about those issues as an
attempt to confuse the jury with irrelevant matters. But that decision
is not inevitable, and a small minority of judges might reach the
opposite conclusion, inevitably complicating Smith’s presentation of
the case and reducing the likelihood of a conviction.

Far more prosaically, trial judges have near absolute and plenary
authority over the timing of trials in their courtroom. They set the
deadlines for when discovery must be completed, for when motions must
be filed, for how quickly (or slowly) they decide those motions, and,
ultimately, for when the trial will be scheduled.

As the special counsel made clear in his brief public remarks
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Friday, he is seeking a relatively speedy trial. Beyond the normal
concerns regarding delay—that evidence will grow stale or that
witnesses will become unavailable—he wants this trial to be resolved
well before the 2024 presidential election. Many think that the public
interest also counsels a quick resolution; as voters, we also want to
know the result before the election.

Trump, by contrast, wants delay. Delay always benefits a defendant,
but here, if the trial were postponed until after the 2024 election,
there is every reason to think that a Republican victor (whether Trump
or another candidate) would order the case dismissed. We cannot know
now who will win, but in some ways the Trump candidacy is the ultimate
plea for absolution from his criminal jeopardy. He is running for
president in part to avoid jail.

Moreover, to be completely fair, though the average timeline for a
typical white-collar case runs from nine to 12 months, it would be
utterly unremarkable if this case were to take longer to come to
trial. Given the uniqueness and complexity of some of the issues that
might arise, even a completely neutral jurist might find it difficult
to move this case along as rapidly as Smith would like. How much more
likely is delay now that a Trump-friendly judge has been named?

The special counsel is not powerless in the face of these challenges.
He may repeat his public call for a rapid trial in formal papers. He
can make motions to exclude frivolous arguments, and attempt to
convince a reluctant jurist with detailed legal reasoning. In the end,
if he feels especially aggrieved, he can ask Judge Cannon to recuse
herself or seek her recusal by the Eleventh Circuit. These steps are
not wholly ineffective. But realistically, they are second-best
solutions to a difficult problem. Even if successful, they will result
in delay—and if unsuccessful, they will leave Smith no better off
(and possibly worse off for having directly challenged the judge) than
he was before.

The choice of judge is not the only challenge Smith faces. The jury
that will hear the case, or, more accurately, the jury pool from which
the jurors will be drawn, will also be challenging. Like many
observers, I thought that the special counsel would bring his charges
in Washington, D.C., if only because doing so would let him draw from
a jury pool that more than 90 percent of voted for Joe Biden in the
last election.

But venue is not always a choice; it is sometimes an inexorable
constitutional command. And a review of the new indictment makes clear
that most of the charges Smith has lodged could have been brought only
in the Palm Beach division of the Southern District of Florida, where
Mar-a-Lago is located. That jury pool is more evenly divided
politically than the jury pool in D.C. To be sure, Biden won in Palm
Beach County, with more than 433,000 votes. But Trump received more
than 334,000 votes, and that 46 percent of the electorate is likely to
be 46 percent of the pool from which the jury will be drawn.

Voting patterns, of course, are not an absolute proxy for a juror’s
determination at trial. Indeed, the entire purpose of voir dire (the
process of examining potential jurors before they are seated) is to
weed out of the jury those who have already made up their mind and who
cannot fairly hear the evidence. But a great deal of discretion goes
into assessing a juror’s suitability (again, a role for the judge),
and, more to the point, the standard to be applied is that a juror has
already reached a decision.

That does not, and cannot, mean that jurors may not have
predispositions and biases. Many jurors (indeed, likely all of them)
will come to the jury box with a preexisting view of Trump. And it
would be both impossible and improper to seat a jury composed solely
of Palm Beach Biden voters. At a minimum, some jurors will have
inherent sympathy for the defendant—and the total number of them
will likely be greater in Florida than in Washington, D.C.

This, too, will make Smith’s case harder to win. Reluctant jurors
can be persuaded by a strong case, such as the one against Trump. And
experience tells us that convictions of Trump’s allies are possible.
But most of the convictions thus far—such as those of Steve Bannon
and Paul Manafort—have come in jurisdictions that have leaned
decidedly against Trump. Even Trump’s civil trial in New York City,
which had to deal with a diverse jury pool likely containing
Trump-supporting jurors, occurred in a venue that was significantly
weighted against Trump. Because this is the first significant instance
in which a Trump-related case has been brought in a venue where the
jury pool is politically balanced, the conduct of voir dire and the
seating of a jury will be an especially important part of the case and
another unusually notable obstacle to Smith’s success.

And then, finally, there is the wild-card prospect of jury
nullification—the possibility that an adamant pro-Trump supporter
will be seated on the jury with the committed mission of refusing to
convict Trump, against all the evidence. This risk is not unique to
the Trump prosecution. It can arise in any political case and can even
appear in situations (like the prosecution of minor drug offenses)
where the identity of an individual defendant is irrelevant to the
nullifier. But it seems clear to me that the risk of nullification is
especially salient with high-profile defendants like Trump, who are
often the beneficiaries of cultlike loyalty.

Here, too, Smith is not without recourse. Careful voir dire is
intended to address this problem directly. But mendacious jurors who
want to sit on a jury in order to disrupt it can be difficult to
ferret out and seem more likely in the context of Trump’s trial than
in most others. A complacent judge will only exacerbate the problem.
It is by no means improbable that the end result of a lengthy trial of
Trump would be a hung jury with a single recalcitrant holdout. Any
retrial would happen during the administration of whoever won the 2024
election.

Are any of these obstacles insurmountable? No. But they are far more
formidable than many observers think. The fundamental strength of
Smith’s case mandated an indictment; bald-faced rejection of the
legal system and manifest threats to national security could not be
ignored. The strength also counsels optimism for a conviction. But the
collateral factors of judge and jury make this a much harder case than
the typical criminal prosecution.

As always, this circumstance demonstrates that the criminal process
is, in the long run, ill-suited as a vehicle for resolving the
fundamental underlying political problems facing America. Those
problems seep into the process and affect its operation. Ultimately,
the only solutions to America’s political challenges lie in the
political arena.

_Paul Rosenzweig
[[link removed]] is a principal
at Red Branch Consulting. From 2005 to 2009 he was the deputy
assistant secretary for policy of the Department of Homeland Security,
overseeing the U.S. Secret Service. He teaches cybersecurity at the
George Washington University Law School. Twenty years ago, he served
as a senior counsel in the investigation of President Bill Clinton._

* Trump Indictment
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* Jack Smith
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* Trump Conviction
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