It's Hot Indictment Summer
Gym, tanning, laundry, and jail time.
Happy Friday. The Jackal is back from its 4th of July vacation, and not a moment too soon, since things are getting crazy. This week we’ll touch on the big rumors about another Trump indictment happening soon. Real soon.
Unless you have been hiding under a rock, you know that Donald Trump has now been indicted twice, in both New York and in Florida. But here’s the thing: We’re not done.
The big news this week was that the a grand jury was empaneled in Georgia to (again) look at Trump’s attempt to overturn the election results there. A while back, the District Attorney of Fulton County, Fani Willis, said that charging decisions were “imminent.” It turns out, she wasn’t speaking literally, because the preliminary grand jury that heard evidence in Trump’s case ended up packing up and going home, and an indictment never came.1
The grand jury can’t actually make a decision until next week, so we may not see a charge come for Trump until late July or early August. But that doesn’t mean we will have to wait that long; it really looks like Special Counsel Jack Smith is also preparing to bring an indictment related to Trump’s election interference.
If he is going to do that, it would make sense for him to try and get out ahead of Georgia since (1) Federal prosecutors like to do things like this and (2) any charges he brings would likely overlap with the Georgia indictment. Trump is working hard to slow Georgia down, but there may not be much he can do to stop Smith. There were earlier reports from a few outlets that said Smith had subpoenaed officials in a bunch of States, from Arizona to Nevada. Couple that with another story that broke today, which detailed Smith prodding people close to Trump about whether or not he acknowledged he lost the election in private, and you can start to see the sort of case Smith is planning to bring. It seems like he wants to demonstrate that Trump corruptly tried to overturn the election results in multiple States, by pushing his “fake electors” scheme and then allowed a mob to completely get out of control and attack the Capitol (the latter point may be beyond Smith’s charges).
I want to say two things about Smith’s case:
Some have posited that Smith may just be writing a very broad and detailed report about January 6th and Trump’s attempts to overturn the election, which will ultimately not result in charges but will still be pretty bad.
I think this is a fair reading of public events just given how wide of a net Smith has cast. He is talking to everybody, from Trump aides, to lawyers for the Trump Campaign, to Republican officials. It is possible that Smith wants to do what Robert Mueller did - which is write a report with his declination decisions - and provide as much detail as possible, without finding an explicit crime.
However, while allowing for every possible scenario, this seems unlikely to me because:
Smith is taking steps that only a prosecutor who is planning on charging someone would take.
Yesterday we heard that both Jared Kushner and Ivanka Trump were subpoenaed by Smith and asked to testify. Mike Pence has also appeared before Smith and discussed what happened after the election in 2020. Smith has been very, very aggressive and has displayed no hesitation when it comes to targeting people close to Trump.
That is a signal that he expects to charge someone with a crime. Is it possible that Smith will limit his charges to people like Rudy Giuliani or John Eastman, who pushed the fake electors scheme?2
Yes, but it would be incredibly weird to do that without charging the principle of that criminal activity, which would be Trump himself. What’s more: Smith has offered immunity to some of the fake electors themselves, which is the sort of action you would sometimes see if you suspected someone higher up had committed a crime.3
OK, tell me when Trump is going to jail.
I feel like this has been a repeated subheading in the Jackal, but the real answer is that it’s not clear. I think this is really safe to say: If he is actually going to be imprisoned as a result of being found guilty in a trial, the only real chance of that happening before the 2024 Election would be in a case related to January 6th.
That is for two reasons. First, as I’ve said before, the case brought by the Manhattan DA is unlikely to result in any jail time. Trump is a first-time offender and even the most severe penalty is four years in jail. He is probably looking at fines and some sort of community service if he is found guilty.
Second, the classified documents case is almost certainly not going to trial before the 2024 election. Smith is doing his best to try and speed it along, but Trump’s attorneys are (predictably) using every trick in the book to delay the case. However, even if they don’t succeed, a case involving this many classified documents is just simply going to take forever to litigate. It will take months just for the government to figure out which of the documents can be declassified and seen by jurors. It will take months just for Trump’s attorney to get their own clearances.
There is a method the government uses to try cases like this, called the Classified Information Procedures Act, and it does work. It just takes forever. So, if you are waiting for Trump to be in jail prior to the election, you will have to look elsewhere than the Mar-A-Lao case and the case in New York.
Which is why any potential forthcoming indictments in Georgia or D.C. should be the ones to watch. You should also keep your eye on additional indictments coming in Florida; one should be dropping in the next few weeks.
See everyone next week, but the Jackal will be taking an extended holiday in August.
Georgia has a weird system where one grand jury hears evidence, recommends an indictment, but doesn’t actually do it outside of issuing a report.
If you need a quick recap: The “fake electors” scheme consisted of getting an alternative slate of electors from each state to sign a statement saying Trump won the election, and - on January 6th - have Pence say that he was recognizing those electors as opposed to the ones who were poised to elect Joe Biden.
This is definitely not always the case. Best example I can think of off the dome is that the FBI gave immunity to the IT tech who deleted Hillary Clinton’s emails. They gave him immunity not because they suspected he had committed a crime, but because he and his attorney were (rightly) worried about talking to the FBI. Once immunity was given, he came clean and his story matched up with the FBI’s forensics about what happened to the emails.