How Trump's trial could alter the nation's political landscape
Former President Donald Trump appeared for his arraignment in Miami this week, the first former president to face federal criminal charges.
A criminal trial is a different thing from an impeachment. What kind of legal defense might Trump present in court?
Today, On Point: How Trump’s trial could alter the nation’s political landscape.
Ankush Khardori, attorney and former federal prosecutor in the U.S. Justice Department. Contributing writer for POLITICO. Contributing editor at New York Magazine.
Jack Beatty, On Point news analyst.
David Stebenne, professor of history and law at Ohio State University.
CHAKRABARTI: It’s been one week since Justice Department special counsel Jack Smith announced the federal indictment of former President Donald Trump.
JACK SMITH: Good afternoon. Today, an indictment was unsealed, charging Donald J. Trump with felony violations of our national security laws, as well as participating in a conspiracy to obstruct justice.
CHAKRABARTI: That was Smith last Friday. With the indictment, Trump makes history again. The first president to be impeached twice is now the first former president to face federal criminal charges. 37 in all.
SMITH: We have one set of laws in this country, and they apply to everyone. Applying those laws, collecting facts. That’s what determines the outcome of an investigation. Nothing more, and nothing less. The defendants in this case must be presumed innocent until proven guilty, beyond a reasonable doubt in a court of law. To that end, my office will seek a speedy trial in this matter, consistent with the public interest and the rights of the accused.
CHAKRABARTI: On Tuesday, Trump pleaded not guilty to all charges in a Miami federal court. The indictment lays out details of Trump’s alleged crimes, which highly classified national security documents he possessed, where he stored them at his Mar-a-Lago club, and how he asked his lawyers to lie to federal investigators about the documents.
The indictment also alleges that Trump knowingly showed classified military information to a writer and publisher during an interview in 2021. Here’s CNN’s Paula Reid reading some of the exchanges from that conversation, as outlined in the indictment, where Trump refers to General Mark Milley, Trump’s former chairman of the Joint Chiefs of Staff.
PAULA REID: He says, quote, “Well, with Milley, uh, let me see that. I’ll show you an example. He said that I wanted to attack Iran. Isn’t that amazing? I have a big pile of papers. This thing just came up.” On the tape we’re told that you can hear him rustling the papers at this point. “Look, this was him. They presented me this. Isn’t this amazing? This totally wins my case.”
And I want to note here, his case he’s referring to here is this dispute with Milley, not the current pending criminal investigation. “Except it is like highly confidential. Secret. This is secret information. Look, look at this.” I will note that secret and confidential are both, of course, levels of classification. And then arguably the most damning quote he says, he asks someone in the room if he can declassify it. And then he says, “As president, I could have declassified, but now I can’t.”
CHAKRABARTI: Trump has denied that he ever handled the documents after leaving office. Here he is just last month, at a CNN town hall.
KAITLAN COLLINS: When it comes to your documents, did you ever show those classified documents to anyone?
DONALD TRUMP: Not really. I would have the right to. By the way, they were declassified after.
COLLINS: (CROSSTALK) What do you mean not really?
TRUMP: Not that I can think of. Let me just tell you, I have the absolute right to do whatever I want with them. I have the right.
CHAKRABARTI: Again, the federal indictment contains multiple details that contradict Trump’s denial. Well, last weekend, former Attorney General Bill Barr summarized the seriousness of the indictments’ revelations. He was on Fox News Sunday.
BILL BARR: If even half of it is true, then he’s toast, I mean, it’s a pretty, it’s a very detailed indictment and it’s very, very damning. He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets the country has. They have to be in the custody of the archivist. He had no right to maintain them and retain them.
CHAKRABARTI: So what will be the legal consequences of these charges? How might the trial of Donald Trump play out? And perhaps more importantly, how could Trump’s trial change the national political landscape in the longer term? Well, joining us now is Ankush Khardori. He’s a former federal prosecutor in the Justice Department. He’s also a contributing writer at POLITICO and a contributing editor at New York Magazine. Ankush, welcome to On Point.
ANKUSH KHARDORI: Thank you for having me.
CHAKRABARTI: Also with us is Jack Beatty, On Point news analyst. And he’s with us as always from Hanover, New Hampshire. Hello there, Jack.
JACK BEATTY: Hello, Meghna. Hello, Mr. Khardori.
CHAKRABARTI: So, Ankush, I’d like to start with, you know, just the fact that, yes, it has been a week now since the details of this indictment have been allowed to settle a little bit. With the perspective of these past seven days, what’s the one thing that as a former federal prosecutor stands out to you the most?
KHARDORI: Well, I mean, obviously, we’ve had a bunch of reactions from Trump and other Republican politicians sort of ranging in the strength of their sort of defense of the former president. I’m sure we can get into that or touch on that later. But the most significant thing to me is still the indictment itself, quite honestly.
You know, I followed this investigation as closely as I could through media reports for my own work. And, you know, there was still quite a bit that’s new. And these are allegations. It’s important to remember that. This information would still need to be proved up at a trial. But there’s a lot of factual claims in here that were new to me, I think to everyone in the media. And really took me aback, I have to say.
CHAKRABARTI: So give me give me the first one that took you aback.
KHARDORI: Well, first, there are a couple of instances the indictment alleges in which, in one of them you just alluded to, Trump is alleged to have shown classified documents to people at his Bedminster property in New Jersey. And then second, you know, we have this trove of communications between Walt Nauta and other people in the property that all reflects Trump’s involvement in moving the boxes around over the course of the time they were in his possession.
Including, crucially, after he received a grand jury subpoena, as part of an effort to evidently evade responding to that subpoena. And then third, I would say the information, the de facto allegations tied to material obtained from Trump’s own lawyer and then Corcoran, that is a crucial element of this indictment, allegations in which the prosecutors claim that Trump effectively used his attorney unwittingly to mislead Justice Department investigators.
CHAKRABARTI: Okay, so can we dive into that one a little bit more, and link it back to what you had just mentioned about the conversations that Trump is alleged to have had, or the moments he’s alleged to have shown some of those documents to other people. Because I think those two things, at least those two things in combination — again, they’re allegations. But they seem to lay out a case in which Trump was very knowing in his behavior with these documents, vs. the sort of the shoulder shrug denial he’s been consistently giving to the public. I mean, do you see that, that there’s a case being laid here for knowledgeable actions allegedly taken by the former president?
KHARDORI: Yes, absolutely. And in fact, they needed to make allegations like that in order to satisfy the elements of the statute that they’ve charged him under. Right? You can’t accidentally violate the Espionage Act, which is the statute that they’ve used to prosecute him under, for willfully retaining the documents. So you’re absolutely right. And of course, there are other allegations here, including, you know, his involvement, moving the boxes around after the subpoena, all of which goes to his knowledge.
And the other point I would just say on these two kinds of pieces of evidence that you’re rightly focused on, one of the reasons that they’ve drawn the attention of myself and other sort of former federal prosecutors, people who handle criminal law, these are forms of evidence that would be very hard for Trump to run away from at a trial. Right? His own words, his lawyer’s own notes of contemporaneous conversations with him. Right? His lawyer was being paid to serve his interests. Right? He’s his agent. So these are potent forms of evidence that I think jurors are likely to latch on to if we see a trial and this information is admitted at that trial.
CHAKRABARTI: If the information is admitted. Okay. So I want to come back to the transcripts of some of the conversations that Trump is alleged to have had. But with the word if, Ankush, you actually open the door to a really, really important question. And Jack, I want to turn to you on that, because let’s just jump forward for a moment to what the trial, as and when it happens, of the former president, might look like. Because you’ve pointed out that they drew a very interesting judge.
BEATTY: Aileen Cannon, 42 years old, appointed to the bench three years ago by Mr. Trump, with 14 hours of criminal trial experience, no experience in trying national security cases, as this one is, and a record of at least one decision flagrantly favorable to Mr. Trump, for which she was struck down, slapped down by the 11th Circuit Court, which unanimously reversed her pro-Trump decision and the documents case last year. And two of the three judges who on that circuit were Trump appointees.
So, and then when you look at what could she do if she had the mind to continue this, you know, “I’m going to be with Trump, come what may.” Well, one of the things she could do is she could leave out the testimony of that attorney that Mr. Khardori just mentioned. That was ruled allowable by an earlier, by another judge, that you could pierce the attorney client protection that usually keeps a lawyer’s memorandum inviolate. She’s not bound by that, and she could dismiss that. Secondly, she could, experts say, she could entertain the farfetched, at least some people think, charge that there’s been prosecutorial misconduct. That could lead to delay.
And third, and perhaps most crucially, she can decide on potential jurors. Are they, you know, when either side says, “We don’t want that person because they’re either pro or anti-Trump.” She can overrule them. All of these things are ways in which she can slow down the trial. And in this instance, Nancy Gertner, the former federal judge and a friend of this program, says that this is a situation where speed equals substance.
Because if Trump can slow things down, he could even perhaps be elected president, or another Republican could be elected president. It is, in this context, though, somewhat refreshing to report that in a ruling yesterday, she showed a concern with speed. She told the attorneys they had to by today, contact the Justice Department about getting clearance to look at security documents. And they have just a few days, to confirm that. So that, at least, is an early sign that maybe she is going to act expeditiously.
CHAKRABARTI: Okay. Really interesting analysis there, Jack. When we come back from the break, Ankush, I’m going to want to hear from you about a judge’s role in a case like this. So just hang on for one moment. We’re taking a close look at the federal indictment against former President Donald Trump. And we’re trying to make sense of what might happen, not just legally, but in the long run, to America’s political landscape. Back in a moment. This is On Point.
CHAKRABARTI: Today, we’re speaking with Ankush Khardori. He’s an attorney and former federal prosecutor in the U.S. Justice Department. He’s now contributing writer to POLITICO and a contributing editor at New York Magazine. Jack Beatty is with us. He’s On Point’s news analyst. So Ankush, pick up where Jack left off and help us sort of make a little sense, for those of us who don’t know the federal legal system as well as you do, about how it works, first of all, with judges being assigned to cases or trials. What’s the normal process there?
KHARDORI: The normal process is that the district courts randomly assign new cases to the judges that are available. And sort of the waiting of the judges, like sort of how available they are in these randomization samples depends on sometimes they’re senior, they take on less cases. In some districts they can sort of, when they reach a certain level of seniority, they can kind of pick and choose which types of cases they want here. But the bottom line is it is supposed to be random, and it appears to have been random in this instance.
CHAKRABARTI: Okay. Yeah. Now, I’m not alleging any wrongdoing. Just want to understand the system here, because, of course, the system also includes the fact that no matter who’s president, they get to nominate judges to the federal bench, and they go through a process and are either installed on the bench or not. And Judge Aileen Cannon was. But Jack also points out that she has shown sort of legal sympathies in cases past, towards Donald Trump. So in a typical case, this is not a typical case. But in a case like this, what is the role that a judge is supposed to play in terms of assuring that a fair trial takes place?
KHARDORI: Okay. So that’s a great question. And I would divide this up into three different phases. The district court judge has a lot of discretion and authority over a trial. So there’s the pretrial phase, the trial itself, and the post-trial phase. So in the pretrial phase, as Mr. Beatty noted, there are going to be some opportunities for her to rule on some of those crucial issues. There are going to be motions to dismiss, I would expect, filed by Trump’s lawyers to dismiss some or all of the counts, that would be up to her to decide in the first instance.
There may be discovery disputes. Trump’s lawyers may want more information the government is inclined to produce to them in the course of discovery. She would rule on that. She would rule on allegations of misconduct. She could approve interlocutory appeals, which are appeals that are pretrial appeals that are sort of normally disfavored. But she could approve them and that would introduce some delay. And of course, she can set the trial schedule. Right? And that’s almost entirely within her discretion. You know, throughout this process, there are going to be rulings on motions to suppress or exclude certain pieces of evidence, including, as you noted, the material from Corcoran is likely to be high on that list.
At the trial, right, of course, she’s involved in selecting the jurors. She will be ruling on objections that the lawyers make during the course of the trial. There are even, I mean, this is sort of a remote possibility. But just to give your listeners the sort of full picture, after a jury has been impaneled, but before the jury has reached its verdict, a judge can dismiss a case if he or she concludes that the evidence is insufficient to support a verdict, and that ruling is not appealable. Now, that’s a very, very rarely used tool by judges. It’s obviously somewhat controversial in high profile cases, but that is a mechanism that is available to her.
CHAKRABARTI: But the evidence upon which a ruling like that would be made would depend on what evidence was admitted in all those pretrial motions.
KHARDORI: Yes, it would. But there would be no mechanism to seek an appeal of that decision, even if it seemed to be glaringly improper.
CHAKRABARTI: Right. I was just pointing that out because from what you said, it’s the same judge that would decide what or who has a strong voice in what evidence is admitted.
KHARDORI: Oh, yes, yes, yes, yes. You’re exactly right. So she’s in some sense shaping the funnel of information that would be even available to her at that point of time in the trial. You’re right. You’re exactly right. And then post-trial, again, there may be a motion by Trump’s lawyers to set the verdict aside, or a motion for a new trial. Because the evidence, they might argue, was insufficient at trial to support the verdict. And that is a motion that would be up to the judge, in the first instance. And then, you know, of course, she would set the timeline if there’s a conviction for sentencing.
And the timeline is going to matter in this case, and that could be months, if she so choose, for sentencing submissions and the like. And in fact, that wouldn’t even be that unusual, months. And then, of course, you know, upon a conviction, kind of the most important thing is she gets to determine the sentence. And though the charges here carry some significant maximum penalties, there are no mandatory minimums on any of the charges that have been brought against the former president. So, in theory at least, she has very wide latitude. Now, there are rules and procedures that are supposed to govern how judges decide their sentences. It’s somewhat complex theory of the law. But the short of it is, for your purposes of your listeners, she has very wide discretion in that setting.
CHAKRABARTI: Got it. Okay. So I want to focus for another quick minute on things that might happen pretrial in that first phase that you talked about. Because just to remind folks, the indictment alleges, just going to read a bit from it here, that the kinds of documents that were found on Trump’s properties included defense and weapons capabilities of both the United States and foreign countries. So documents that describe those. United States nuclear programs, potential vulnerabilities of the U.S. and its allies to military attack, and plans for a possible retaliation in response to a foreign attack. So those are the types of documents.
Now, given that, you’ve pointed out the importance of Trump’s lawyers’ contemporaneous notes and also those transcripts of conversations that the former president had with the writer and publisher. I want to point out that the document says that the transcripts come from recordings that Trump himself approved, that those recordings could be made, when those conversations happened. With those two things in mind, in a pretrial motion to not allow that evidence to be submitted to the trial, what argument would Trump’s legal team make to justify blocking that evidence?
KHARDORI: So I think, you know, the recording of the meeting at Bedminster, right, the one that we heard Paula Reid reading earlier in the show. That would be hard, because you’re right. It’s just a recording that he appears to have been consensually involved in. The set of material tied to Corcoran, right, including Corcoran’s notes, in what appear to have been some voice notes that perhaps were transcribed and incorporated into the indictment.
You know, the argument would be that that material was privileged, attorney client, pursuant to the attorney client privilege, and that it shouldn’t have been handed over to prosecutors. Now, this issue was litigated in D.C., as Mr. Beatty noted. And the argument the prosecutors made was that it should be available to the trial team, because the communications were in furtherance of a crime or a fraud. And that is an obscure but significant exception to the attorney-client privilege. So I would expect them to try to relitigate that in front of her because it is such a significant body of evidence.
CHAKRABARTI: I see. Now, Jack, you had also pointed out, and Ankush Khardori buttressed your thought here about another factor that Judge Cannon would have a great deal of influence on, is the speed of the trial. Right? And also, when it starts. You said that perhaps there’s a little bit of hope there in terms of her most recent comments on getting things begun rather quickly. But what’s your concern about a trial, let’s say, in one of Mr. Khardori’s writings, he pointed out that federal trials like this could potentially take 2 to 3 years, normally. If that’s the timeline, Jack, what’s the concern? What’s your concern there?
BEATTY: Well, from Trump’s point of view, it puts everything on the election. If he’s elected, he can tell the Justice Department to go away. Or he can deep-six the whole thing. Or if another Republican pledged to pardon him is elected, he can be pardoned. So I think his calculus is all political, all the time. And that his legal strategy probably is going to be subordinated to his political imperative to survive, to try to get to the election, to hope against hope, perhaps, that he is elected or that a Republican is elected and that all this can go away.
CHAKRABARTI: Okay. So, Mr. Khardori, you’ve also written about this, right? That first of all, if Trump does get reelected, as president he could just stop the Justice Department’s investigation and representation in the trial against himself.
KHARDORI: Yes, he could. And I think Mr. Beatty has sort of sketched out exactly sort of the odd and unprecedented dynamic. Obviously, everything about this is unprecedented. But the particularly unusual dynamic at play here, he’s right about that. He could pardon himself, potentially, not that people would be angry and contest it. But practically speaking, I think it would be hard for anyone to challenge that. And he can also, yes, as you said, sort of direct the attorney general, including an acting attorney general, during the transition, before a Senate-approved attorney general comes into place, to dismiss the case and close any open investigations.
CHAKRABARTI: Now, correct me if I’m wrong, because if memory serves. Okay. First of all, there’s never been a president whose stopped a trial where he is the defendant in that trial. So this is a unique moment. But in the past, under various administrations, Justice, DOJ’s have actually decided to either not defend cases or drop cases, even as they moved to trial. Is that correct?
KHARDORI: Yes, it’s rare. But we recall from the last administration, the Michael Flynn prosecution. Which he pled guilty to crimes, decided that he wanted to withdraw his guilty plea, whatever. But the Justice Department ultimately moved to dismiss that case and they were ultimately successful, or they got pretty far along, actually. He got a pardon before the whole thing could, as I recall, reach a firm resolution. But they did try to do just that.
CHAKRABARTI: Okay. So one more question in terms of the mechanics of how these trials work, because, Jack, I really appreciated what you pointed out. Right? That the duration of the trial is important. And then because of the November 2024 election, that’s just a year and a half from now. I mean, Ankush, could you envision any possibility that a trial of this magnitude is not only begun but concluded in a year and a half?
KHARDORI: So it seems unlikely to me, right? I wouldn’t assume that that would happen, but not impossible. Right? And, you know, I think Smith and his prosecutors obviously have said that they want to move it forward. He also noted correctly, and this is under the law, too, under the relevant statute, that the public also has an interest in a speedy trial in any case, not just the defendant.
And in this instance, I would imagine we’re going to start to hear some arguments along the lines of people saying, “Well, you know, yes, we could push this off past the election, but shouldn’t the voters know what the actual evidence in this case is and how a jury renders their verdict before they go to the polls?” And so that would be a very tricky set of issues for any judge to entertain. And, of course, we may have a judge here who’s disposed to help the former president. But, yeah, I think it’s more likely than not that this case is not resolved, or at least at the trial-level by the election.
CHAKRABARTI: Okay. So what happens inside the courtroom in the trial of Donald Trump must meet strict legal standards, especially as it is a criminal trial. But we have to talk about what’s happening outside the courtroom in terms of the court of public opinion and the politics that are swirling around the indictment. So let’s just listen to how some members of the Republican Party have responded. This is Republican Congressman Ralph Norman of South Carolina. And on Tuesday, he continued to defend Donald Trump from the indictment.
RALPH NORMAN: They’re persecuting Donald Trump.
INTERVIEWER: You don’t think he did anything wrong?
NORMAN: Compared to Joe Biden? This is a witch hunt. And let them do it because it’s helping him in the polls. It is helping Donald Trump in the polls. And let the American people decide.
CHAKRABARTI: Alright. So that was Republican Congressman Ralph Norman of South Carolina. And last Friday, on the same day where special counsel Jack Smith made the announcement about the indictment, Kari Lake, who ran for governor of Arizona in 2022 with Trump’s endorsement, spoke at the Georgia GOP convention.
KARI LAKE: We’re at war, people. If you want to get to President Trump, you’re going to have to go through me, and you’re going to have to go through 75 million Americans just like me. And I’m going to tell you, “Yep, most of us are card carrying members of the NRA.” That’s not a threat.
CHAKRABARTI: The coda there of, “That’s not a threat.” But Jack Beatty, what do you hear in the language of Lake and others?
BEATTY: Well, it’s an incitement to violence. And it’s not speaking into a vacuum. According to a study from the University of Chicago, 12 million Americans, 4% of the population, believe violence is necessary to restore Trump to the presidency. Now, does that mean that these incendiary comments are going to bring, you know, mobs out on the street a la a repetition of Jan. 6?
Well, it didn’t happen in Florida, in fact … one would notice that at one point there were more feral chickens on the lawn than there were protesters. But the problem is this can always incite the individual berserker, you know, as it did, as the protests and the violent rhetoric over the initial Mar-a-Lago search last year. That triggered an attack on an FBI office in Cincinnati where a man was killed, he had an assault rifle. And something like that could happen again. And in fact, it almost seems like these people are encouraging that, you know, in a tactic that experts call stochastic terrorism. Essentially just saying, “Hey, you know, something terrible might happen. We don’t know when, but it could happen.” And that tends to encourage this sort of violence. And so, it’s playing with fire.
And I wish you could say that it wasn’t finding favor with Republican voters. But, you know, we have a Quinnipiac poll this week that shows he’s actually gained four points in the week. There are other polls showing he hasn’t done so well at all. And then there were focus groups, you know, of Sarah Longwell, our friend of the show, did focus groups, and she found that of 58 people, 26 were more likely to vote for Trump. Only two said they were less likely. So the Trump cult, the hold over the minds, over his voters seems to be strong. What J.D. Vance said in 2016 seems to be true, that Trump is cultural heroin for many of his supporters.
CHAKRABARTI: Well, Ankush, I wonder what you think about that, because, you know, I do note that Kari Lake went so far as to point out that she claims that the 75 million people who voted for Donald Trump in 2020 are mostly card-carrying members of the NRA. I’m not actually sure that’s true. But nevertheless, you know, she’s bringing guns into her rhetoric there, even though after a long pause, I think she probably thought better of it and insisted that that’s not a threat. But what’s your reaction to this concern about the potential of political violence?
KHARDORI: I share that concern wholeheartedly, for the reasons Mr. Beatty outlined. I think the comments from Ms. Lake are shameful. I don’t think anyone in public life should be talking like that and I am worried about it, as well. Now, granted, this time around, and like on Jan. 6, the law and federal law enforcement apparatus is not, you know, under Donald Trump’s authority. And, you know, I think that the hearing on Tuesday provided a really nice indicator of some peaceful protest rather than violence. But I share the concerns.
CHAKRABARTI: Well, you’re listening to Ankush Khardori. He’s an attorney and former federal prosecutor in the DOJ. He’s a contributing writer to POLITICO now, and contributing editor to New York Magazine. Jack Beatty is also with us. He’s On Point’s news analyst. And we’ll have more when we come back. This is On Point.
CHAKRABARTI: Ankush and Jack, before we get further into the political ramifications of the federal indictment against Donald Trump, I wanted to just return to one quick question about trial mechanics, Ankush, in particular, and that’s about jury selection, right? Because I imagine that will take a long time. Because it’s going to be a challenge to find members of a jury that have either not at least heard of the indictment, definitely have … not heard of Donald Trump and could potentially, you know, not hold any preexisting opinions about the case or the defendant? I mean, it seems next to an impossible situation, Ankush.
KHARDORI: Yeah, well, if you sort of sketch it out that way, I mean, you’re right. And every almost everybody is going to have heard of it. I would assume everybody will have heard about the case. That alone, or even if you have some sort of prior opinions about the defendant, that alone might not be enough to get you sort of, you know, removed from a jury panel. Again, a lot of this is up to the judge herself, but generally speaking, the sort of key question that a juror gets asked, even when they may have some familiarity with the case, or maybe they even voted for the person, and the sort of the way out of getting someone kicked off a jury is the judge asked, “Okay, despite all that, do you still think it could be a fair and impartial juror who makes her decision based on the evidence that’s introduced in this courtroom and pursuant to my instructions?” Right? Basically, “Can you set all that aside?” And, you know, people can credibly say, “Yes,” a judge can say, “Okay, you can sit on this jury.”
CHAKRABARTI: People can credibly say, yes, really?
CHAKRABARTI: I mean, they can say yes, but look, in other cases, perhaps so. But this is such a unique moment with such a divisive figure. I mean, would it be credible if someone who, you know, doesn’t matter if they voted for Trump or Biden, if they would say, “Yes, I would put all my political biases aside and will assess this case based on its merits and the facts presented before me.” I mean, is that credible?
KHARDORI: Look, I share your concern, and actually I’m a little worried that, like, you know, someone could easily, you know, some ardent Trump supporter could simply mislead their way through the voir dire process. It’s actually, unless there are like contemporaneous public postings that are directly at odds with representations that they’ve made in court, it’s very hard to establish that a juror has actually lied during voir dire process.
But look, on the sort of the glass half full view is, you know, I have views about the current president, my views about Donald Trump, and I would be able to answer that question totally honestly. And so, yeah, I could set all that aside. And I’m sure, you know, many people could. And there have been politically inflected prosecutions, obviously nothing like this. But, you know, when Paul Manafort was on trial in Virginia a few years ago, there was the similar concerns.
CHAKRABARTI: All the Jan. 6 trials, I would say.
KHARDORI: Yeah, those are in D.C., though, which is a heavily Democratic jurisdiction.
CHAKRABARTI: Oh yeah. Fair enough.
KHARDORI: But yeah, and of course, Florida is much more favorable to Trump in that regard. Statistically, we should assume at least a few Trump voters would be on this jury if that comes to pass.
CHAKRABARTI: Hmm. Okay. Well, so getting back to the long-term political ramifications here, we wanted to just take a second to note that while this case is unique in that Donald Trump is the first former president to be indicted under federal charges, he’s not the first presidential candidate necessarily to be indicted or charged under the Espionage Act in particular. It turns out that a precedent was set on that matter a hundred years ago by the Socialist Party’s Eugene V. Debs.
DAVID STEBENNE: Eugene Debs has a very interesting backstory. He’s a native of Indiana, and he started out as a, in some ways, a fairly conventional trade union leader in the late 19th century, representing railroad workers. And in 1900, he became the leader of the Socialist Party in the sense of its presidential candidate. For the next 20 years, most of the time, he was the candidate of the Socialist Party for president.
CHAKRABARTI: That’s David Stebenne. He’s a professor of history and law at Ohio State University. Now, when the United States entered World War I in 1917, that’s when Congress passed the Espionage Act, which prohibited efforts to interfere with the draft. Among other things, Debs and the Socialist Party disagreed with the decision to go to war. And in 1918, he went around the country speaking out against the draft, although he had legal advice to speak on the issue indirectly.
STEBENNE: Literally tells audiences, sympathetic audiences, “You know, I’m not allowed to speak against the draft. Wink, wink.” And they would even chuckle. “But I do believe in American freedom and the government not coercing people.” In other words, he was able, he felt, to get his message across without explicitly attack the draft law.
CHAKRABARTI: But in the eyes of the law, Debs’ indirect speech was not evasive enough.
STEBENNE: In a speech in Canton, Ohio, June of 1918, he was arrested and prosecuted, and the timing of the arrest and prosecution is significant because the fighting for the Americans in Western Europe reached a peak in the summer of 1918. And so the draft law was still working. It was to bring people into the armed forces. And the feeling was that on the part of the government that nothing could be allowed to interfere with that. And so he was prosecuted and convicted of a violation of the Espionage Act. And sentenced to 20 years in prison.
CHAKRABARTI: Former President Trump currently faces charges under the Espionage Act, although again, in a very different context. But Professor Stebenne pointed us to another similarity between the two. The reaction of their base.
STEBENNE: In terms of his core support, I think it made him more of a martyr. In other words, it increased his political appeal to the most anti-war radicals in the country.
CHAKRABARTI: So that’s David Stebenne, professor of history and law at the Ohio State University, talking about 100 years ago and the candidacy of Eugene Debs and his charge under the Espionage Act. Now that last point that Professor Stebenne pointed out about him being charged had made Debs more of a martyr within the eyes of people who supported him in the Socialist Party.
There is a direct metaphor between or analogy between that and what’s happening right now with Donald Trump. So let’s listen to a moment to political strategist Sarah Longwell. She has been doing in-depth focus groups with Trump voters for many, many months now. And on Monday, she told NPR’s Morning Edition about how Trump’s indictment is affecting his base.
SARAH LONGWELL: There’s this phenomenon that happens every time Trump is impeached or indicted, and I call it the rally round Trump effect, where voters express, they sort of share his grievance. And they view, you know, they use words like weaponized, railroaded, two-tiered justice system. And it’s hard to blame voters for believing this, because this is the message they get not just from Donald Trump, but from a lot of Republican elected officials, from right-wing media. Even from Trump’s 2024 challengers. And so when the party, you know, everybody kind of rushes to Trump’s defense and cries foul, you know, you can’t be surprised when that’s the message that the voters take in.
CHAKRABARTI: Here’s a specific example. Sarah Longwell, that same political strategist, held a Republican voter discussion in Des Moines, and it appeared on Wednesday on PBS. And here is what voter Brian Allen said about the impact of Trump’s indictment on his vote.
BRIAN ALLEN: I read the indictment and it’s plain as day that he broke the law knowingly. Whether the DOJ came after him, which I think is very plausible, and why they’re ignoring Hunter Biden’s laptop, I think is a separate issue. But it is clear he broke the law and I think it’s time for him to go away. And I appreciate it for what he did for the country during his four years. But I think that he is part of the problem.
JUDY WOODRUFF: But when asked if he’d vote for Trump if he were the nominee running against President Biden.
LONGEWELL: Trump’s the nominee vs. Biden, what will you do?
ALLEN: I would vote for him for a third time. I think that it’s that significant.
CHAKRABARTI: So voter Brian Allen there telling Sarah Longwell on PBS that even though he thinks that Trump knowingly broke the law on national security, he’d still vote for him again. Now, Ankush, you’ve written about the, in a sense, the corner that this whole indictment and the coming trial paints Joe Biden in. Not legally, but politically as the Democratic candidate in 2024. Can you tell us more about that?
KHARDORI: Yeah, you know, when Joe Biden came into office, even when he was running, he indicated that he did not want to see his administration prosecute Donald Trump. Now, of course, that was before Jan. 6. But by all outward appearance, as he sort of has maintained that sort of disposition at least early through his term. Merrick Garland, I think, was in that position as well. But, of course, you know, things didn’t play out that way.
And now there’s a pending prosecution. And, you know, I think he’s hoping that, you know, he can sort of stay quiet, at least that’s been the reporting here. But, you know, he is now at the head of the executive branch at a time when his own Justice Department is prosecuting his political rival, his leading political rival at the moment. And so I think that, you know, it’s going to be tricky for him to try to stay quiet. I know that that appears to be the plan in the short term, but I fail to see how it will be sustainable, particularly if Trump is the general election nominee.
CHAKRABARTI: Yeah, because he’ll be asked about it during the campaign.
KHARDORI: Right, right, exactly. I mean, it’s all well and good when you decide you’re not putting out public statements, but eventually he’s going to have to answer questions from reporters in some form.
CHAKRABARTI: Okay. And Jack, you know, Ankush pointed out something important, that we’re hearing strong language from the GOP already about. You know, this is how dictators behave, that they prosecute and jailed their political rivals to keep them out of office. I mean, it seems to me that the DOJ has done this investigation aboveboard. But nevertheless, that’s powerful language that holds sway amongst Trump’s base. I mean, what do you hear in that?
BEATTY: Oh, it certainly does hold sway and it fits into the it’s rigged argument. And now it has given license to Trump’s, you know, argument. He’s saying, “Well, I’m being persecuted by the Biden Justice Department. If I’m elected, I’m going to persecute them. I’m going to go after Joe Biden.” So effectively, Trump is saying, “Look, the Democrats are doing it now, and if elected, I’m going to do it in spades.”
And meanwhile, the post-Watergate norm that the Justice Department is somehow separate from the political branch of the executive of the White House, that goes by the board. And in the focus group you mentioned with Sarah Longwell, I was struck by how many people readily thought the Justice Department is just like The President. You know, he just picks up the phone and says, “Go get Trump. And they do it.” They had no view of this as an autonomous justice seeking institution. And they completely accepted the Trump line that it’s a racket.
CHAKRABARTI: Hmm. You know, I’m not sure if we can look anywhere else in the world for guidance on how to handle these things. But Ankush Khardori. I am reminded that the former national leaders in other countries have been both prosecuted and jailed. I’m thinking it’s happened a couple of times in Brazil, for example, in Pakistan, former prime minister there, Imran Khan, is, I think, still under significant, you know, legal jeopardy. Do you see analogies anywhere or is this given what the United States is, is this a completely unique event?
KHARDORI: Well, you know, we are a unique country in many respects. But you’re right. I mean, this has been done in other countries and a couple of countries in Europe, as well. Sarkozy, Berlusconi, folks, you know, in that in those countries have been prosecuted by their former, you know, former leaders been prosecuted. And, you know, obviously, we’re very new to this. And some of those countries, the political systems are quite different, and the law enforcement apparatus is quite different. So it’s hard to draw 1 to 1 comparison.
And I make no claims to be an expert in those foreign countries legal systems. But I do think that the key point here is that a fair number of mature democracies have encountered situations like this, have proceeded through them in an orderly way and come out on the other side, you know, in a totally orderly fashion. Right. And we should hope that we can do the same here.
CHAKRABARTI: Yeah. And perhaps on that note of hope and belief in the strength of U.S. democracy, I want to just note that while Republican support around former President Trump has coalesced rather strongly, it’s not 100% because, for example, here’s former Vice President Mike Pence and now presidential candidate Mike Pence on CNBC’s Squawk Box on Wednesday, raising his concerns about the indictment against Trump.
MIKE PENCE: The very prospect that what is alleged here took place, creating an opportunity where highly sensitive classified material could have fallen into the wrong hands even inadvertently, that that jeopardizes our national security. It puts at risk the men and women of our armed forces.
CHAKRABARTI: And on Tuesday, here’s what Republican Congressman Don Bacon of Nebraska said.
DON BACON: I think it’s obvious what the president did was wrong. And we should be honest. I mean, to have thousands of secrets in your house, showing them to people that were not read in and then giving back some of it, let’s say, saying you gave back all of it and lying about it. I just there’s no way to defend that. And I just think the emperor has no clothes and we need to have the Republican stand up and say that because come around after the primary. I guarantee you the other party is going to be saying this. And I think it will cost us the November elections.
CHAKRABARTI: So in the last minute that we have. Jack, your thoughts on that?
BEATTY: Well, of course, Don Bacon runs from a district that Biden carried in the election. So he’s influenced that way. And on the other side, of course, you have the leader of the Republicans in the House, Kevin McCarthy, saying, “Oh, the bathroom, you know, you could put a lock on the door of a bathroom.” Just laughing the whole thing away. And an analysis in today’s Times, a quantitative analysis seems to say that the dominant view among House Republicans is, “We’re sticking by him.
And it’s banana Republic time and so on.” But it is significant to hear this and somebody, Nate Cohn in the Times, conjectures that you see some of this on Fox News too where they’re quoting people who are doubting and people who have credibility or who should have credibility to talk to Trump supporters. We quoted from former Attorney General Barr. And if more of that goes on, that could chip away at this seeming tight hold Trump still has on his voters.
This article was originally published on WBUR.org.
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