What’s next in the lawfare campaign against Trump

The first thing to say about the Democratic lawfare campaign against former President Donald Trump is that it has been a smashing success. With help from a senior Biden Justice Department official and a Biden-donor judge, Manhattan Democratic District Attorney Alvin Bragg set out to convict the former president on 34 felony counts and ended up convicting the former president on 34 felony counts. By any measure, that is a triumph for a prosecutor — and his party.

Now, though, comes the task of converting a win in court into a win in the presidential election, which has always been the underlying goal of the lawfare campaign. Even with all of President Joe Biden‘s liabilities, including his age, inflation, and the border disaster, some Democrats believed that if they could just call Trump a “convicted felon,” enough would-be Trump voters might abandon the Republican candidate to allow Biden to win a second term.

Maybe that will happen. Right now, though, it’s too early to know precisely what effect Trump’s conviction will have on the race. But it is not too early to see that the confusion, emotionality, and endless arguments surrounding the verdict raise the possibility that the political impact of Trump’s conviction will be muddled. If that is the case, the muddle might also affect the public’s view of the other Trump prosecutions that will go on between now and Election Day. The short version is that, despite the success in Manhattan, it is not at all clear that lawfare will be an electoral winner for Democrats.

A novelty case

It is hard to think of another high-profile trial in which there was so much argument and disagreement about what the defendant was charged with. It began with the indictment, in late March 2023, when Bragg announced he was charging Trump with the misdemeanor crime of falsifying business records but was also employing a legal twist to upgrade the crime to a felony. He then charged Trump with the same felony 34 times. 

News accounts at the time noted that it was a “novel” prosecution, meaning no one had ever seen a case quite like the one Bragg conjured up against Trump. The case was a “novel application of the law,” a “risky and novel case” that “rests on a novel legal theory,” analysts said, to use examples from the New York Times. Sometimes the case was called “untested” and sometimes “unique,” but the larger point was that Bragg, who ran for office on a promise to pursue Trump, had stretched the law to indict his target. Later we learned, also from the New York Times, that Bragg, whose predecessor had not been able to find a suitable crime to charge Trump with committing, “pushed his prosecutors to scour the penal code for a workable theory” — that is, for a charge that could be brought against Trump. It was a classic show-me-the-man-and-I’ll-show-you-the-crime moment.

Unless you just wanted to see Trump brought down for any reason at all, and there were plenty of commentators who did, delving into the details of Bragg’s case could make your head hurt. Trump was charged with causing the business records of his company to be falsified (a misdemeanor) with the intent of covering up another crime (another misdemeanor) that he might or might not have committed but intended to commit and in any event depended on one or more of three other unlawful acts that the prosecutors said, but did not have to prove, that Trump intended to commit. Experienced legal minds struggled to comprehend Bragg’s case.

But not Judge Juan Merchan, who in 2020, in clear violation of New York’s Code of Judicial Conduct, made small donations to the Biden campaign and two anti-Trump groups. When it came time to instruct the jury, Merchan gave the charges the most pro-prosecution reading imaginable. It only took a couple of days for the jurors, all drawn from one of the deepest blue areas of the country, to convict Trump on all 34 counts.

Given the confusion, it would be enormously helpful to know what the jury was thinking. But all Merchan required of them was to check one box per count on a verdict sheet, indicating that Trump had caused the records falsifications. They said nothing about the other crime that made it a felony or the other unlawful act that made the other crime a crime. So when the trial was over, we still didn’t know the whole of what Trump was convicted for, which meant the verdict didn’t do anything to clear up the puzzlement over the charges.

“Is it normal to have this much disagreement just on what the charges are?” a reader of National Review’s Dan McLaughlin asked. “Nothing about this prosecution was normal,” McLaughlin answered. “Nobody would want to see justice work like this in ordinary practice — which it doesn’t.”

The point now is that going forward, one side in the 2024 campaign will be calling Trump a “convicted felon,” while the other side will literally not understand what Trump was convicted of doing. It is fair to say we face months of fruitless argument over the most basic facts of the case, even as its verdict hangs over the campaign. It is possible an appeals court will clarify things, but that will not happen until next year, long after the next president is elected.

The novelty continues

The bafflement over the first Trump prosecution now moves on to the next Trump prosecutions. Trump is charged in three additional cases. Two were brought by Jack Smith, the Biden Justice Department’s choice to prosecute Biden’s opponent. One of those is the classified documents case in Florida, and the other is the case focusing on the 2020 election and Jan. 6 in Washington, D.C. The third case was brought by Fani Willis, the elected Democratic district attorney in Fulton County, Georgia.

The Georgia case, plagued by Willis’s ethics problems, is going nowhere. In early June, a state appeals court stopped all proceedings for months while litigation over Willis continues. The classified documents case is creeping along, mired in pretrial fighting and the difficulties of handling zillions of secret documents. Neither has a ghost of a chance of coming to trial this year. That leaves the 2020/Jan. 6 case, which is the one that true Trump bashers always hoped would be tried first. 

That didn’t happen because the Jan. 6 case has problems, too. And guess what the biggest problem is? “The charges are novel applications of criminal laws to unprecedented circumstances,” the New York Times declared. There’s that word again. Like Bragg before him, Smith scoured the laws to find something to charge Trump with. Now, his “novel application” of the law has led to pretrial wrangling resulting in not one but two Supreme Court cases that have yet to be decided. Decisions are likely coming by late June, but the controversy will almost certainly delay Trump’s trial on the 2020/Jan. 6 charges until after the election.

The Supreme Court case that has received the most publicity is Trump’s claim that he is immune from criminal prosecution for acts he undertook as president of the United States. It, too, is a novel claim — novel charges beget novel defenses. The anti-Trump side has dismissed Trump’s defense as a delaying tactic, but it raises a critical issue, especially in an age in which lawfare is increasingly used as a political weapon. At oral arguments in April, the justices realized the case was bigger than Trump.

“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Justice Brett Kavanaugh said. Justice Samuel Alito added, “Whatever we decide is going to apply to all future presidents.” Justice Neil Gorsuch said, “We are writing a rule for the ages.”

Smith, of course, wanted the decision in a hurry. He did not get his way. In the end, it is expected the justices will not give Trump the blanket immunity he seeks but will decide that a president does enjoy some immunity for acts he takes while in office. We will see what effect, if any, the ruling has on the Trump 2020/Jan. 6 prosecution.

The other Supreme Court case, the one that has received less publicity, involves two of the four counts against Trump, the charge that he obstructed an official proceeding, referring to Congress’s Jan. 6, 2021, certification of Biden’s victory in the Electoral College. (The two separate charges are that Trump 1) obstructed the proceeding and 2) conspired to obstruct the proceeding.)

That part of the indictment is particularly notable because the same charge has been used against hundreds of accused Jan. 6 rioters. In many cases, when rioters did not engage in violence and would otherwise face misdemeanor charges, such as unauthorized presence in a restricted area and illegal parading in the Capitol, the charge of obstructing an official proceeding has been the only felony prosecutors could find to charge them with. About 350 accused rioters have been charged with the offense. And so has Trump.

The problem is that the charge seems entirely inappropriate to the Capitol riot. The law is known as 18 U.S. Code 1512(c)(2). It was passed in 2002 as part of the Sarbanes-Oxley Act, which was designed to crack down on white-collar crime in the aftermath of the Enron scandal. That case involved a lot of documents, and it exposed an odd feature in the law at that time: It was illegal for a corporate officer to tell an underling to destroy documents but not illegal for the officer to do it himself. Congress sought to remedy that situation by passing Section 1512(c)(2), which said: “Whoever corruptly alters, destroys, mutilates or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

It was obvious that the law was intended to plug the Enron loophole concerning the destruction of evidence. But Biden Justice Department prosecutors investigating Jan. 6, scouring the penal code, focused on the part of the law that said “otherwise obstructs, influences, or impedes any official proceeding.” Aha! they said. That’s what the Jan. 6 rioters did, wasn’t it? The prosecutors had a workable theory.

Soon hundreds of accused rioters faced the felony charge of obstructing an official proceeding. Many of them challenged the charge on the obvious argument that the law did not apply to Jan. 6. They all lost — except one, a man named Joseph Fischer. When Fischer’s challenge went before Trump-appointed Judge Carl Nichols, Nichols agreed that 1512(c)(2) did not apply to the circumstances of Jan. 6 and dropped the charge. The Justice Department immediately appealed. It could see calamity coming if the charge it had used against so many Jan. 6 defendants was thrown out. 

The Justice Department won its appeal, but the appeals court judges disagreed among themselves as to the reason why 1512(c)(2) was an appropriate charge. That’s the problem with novel applications of the law. They can be far-fetched, convoluted, and difficult to understand, and even distinguished lawyers can disagree over their meaning. In this case, the Supreme Court took notice and agreed to hear the case of Fischer v. United States. The sentences of hundreds of Jan. 6 defendants hang in the balance, as well as the charges against Trump.

At oral arguments, the justices seemed skeptical that the Enron scandal law could be appropriately applied to the Capitol riot. That could bode ill for the Justice Department. In any event, like the Trump immunity case, it is likely the court will release its decision in late June. No one will find it surprising that Smith is said to be working on a new and novel interpretation of the law to use against Trump even if the Supreme Court rules against Smith in the matter.

The way forward

So what now? The next things scheduled to happen are the court’s late June decisions in the immunity and Jan. 6 obstruction cases. If Trump wins the immunity case, that part of the lawfare campaign against him would be over. But that seems highly unlikely, so Smith’s Jan. 6 case against Trump might well go ahead. If Fischer wins the obstruction case, that would be a win for Trump as well, but Smith will probably have something up his sleeve to keep those charges alive, too.

In Manhattan, Merchan has set sentencing for July 11. It will be a bizarre day in which a Biden donor has the sole authority to put Biden’s opponent in jail. There are quite a few commentators advocating Merchan do just that. But others say that since Trump was convicted of a pair of misdemeanors and since Trump is a first-time offender, the former president should not be sentenced to prison. 

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As for the other two indictments of Trump, the Florida documents case and the Georgia case, the future is extremely unclear. If Trump is elected president, the federal documents case would probably go away. The Willis case might be dead before Inauguration Day anyway.

That’s a quick rundown. But take a step back and you will see this is an entirely surreal situation. It’s an election year, and the nominee of one party is facing four criminal prosecutions driven by elected officials of the opposition party, in the case of Manhattan and Fulton County, and by an official appointed by his opponent’s attorney general, in the case of the Smith prosecutions. All the while, Democrats extravagantly deny that there is anything, anything at all, partisan about what is going on. So no, it is not possible to predict what will happen in the next six months. But it can’t be good.

Byron York is chief political correspondent for the Washington Examiner.