Is Trump really 'toast' in the documents case?

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

In the days immediately following former President Donald Trump’s federal indictment for mishandling classified documents and obstructing the government’s repeated efforts to recover them, a clear consensus emerged even among conservative legal experts: Trump is in deep trouble.

“It’s a very detailed indictment, and it’s very, very damning,” Bill Barr, Trump’s own former attorney general, told Fox News Sunday. “If even half of it is true, then he’s toast.”

Despite publicly arguing that he had declassified the documents before leaving the White House, for instance, ex-President Trump was allegedly recorded showing off U.S. battle plans while describing the material as “highly confidential” and “secret.” He also said that “as president I could have declassified it,” but “now I can’t,” according to the indictment.

Likewise, the indictment cites notes from Trump’s own lawyer, Evan Corcoran, that allegedly chronicle Trump encouraging Corcoran to take a folder of documents “with you to your hotel room and if there’s anything really bad” — read: incriminating — “in there, like, you know, pluck it out” before returning it to investigators.

Yet in recent days, the focus has started to shift from the damning material special counsel Jack Smith compiled to the real-world practicalities of securing the first-ever criminal conviction of a former U.S. president (who also happens to be the 2024 GOP frontrunner).

And the initial harmony among experts that Trump is “toast” has started to splinter.

“In any other circumstances, given the weight of this evidence, the case would be a slam dunk,” explained Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton. “But in the current state of affairs, the case is more aptly characterized as a difficult contested shot from beyond the three-point arc.”

Why there’s debate

The most significant complication is the random assignment of federal Judge Aileen Cannon to the case. Trump gave Cannon her lifetime appointment in 2020; in 2022, Cannon allowed the former president to temporarily derail the classified records investigation with a civil action challenging the search of his Mar-a-Lago estate. Cannon’s decision immediately drew two harsh reversals by a conservative appeals court.

If Cannon doesn’t recuse herself, she could influence Trump’s trial in numerous ways.

And Cannon isn’t the only obstacle Smith faces. The average timeline for a typical white-collar case is nine to 12 months, and Trump’s case is far thornier than most. The Iowa caucuses are about six months away; Election Day is 16 months from now.

If the trial isn’t over before the next president takes office, he or she would, in theory, have the power to dismiss it. Even if it is over — and Trump has been convicted — the next president could issue a pardon. And if the next president is Trump, he could try to pardon himself.

What’s next

According to the New York Times, the prosecution and defense will now “begin a slow but steady rhythm of status conferences, meeting every couple of months in court as the government starts to provide evidence to the defense through ... the discovery process.” Prosecutors will push for a speedy trial; Trump’s lawyers will prepare motions attacking the charges against him and try to slow the case as much as possible.

Perspectives

The longer the trial takes, the more Trump has to gain

“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. ... How much more likely is delay now that a Trump-friendly judge has been named?” — Paul Rosenzweig, former senior counsel in the Whitewater investigation of President Clinton, in the Atlantic

Finding impartial jurors will be hard, and Cannon could make it harder

“The prospect of finding 16 or more people ... who can set aside political feelings about Trump to render an impartial verdict is already a Herculean task. Cannon will set out a process to help vet what is certain to be an enormous jury pool… ‘[That] is really a big one, because the judge makes decisions about which jurors are dismissed for cause, and if that is done in a one-sided way, it can really put the prosecution in a bind,’ said Joyce Vance, a former U.S. attorney from Alabama. ‘It can force them to spend all of their strikes on prospective jurors, who really should have gone for cause.’” — Kyle Cheney and Josh Gerstein, Politico

Just one pro-Trump Floridian could lead to a hung jury

“Florida is Trump country. There’s a distinct possibility that citizens who are true believers in anything the former president does could make it onto the jury. If so, in deliberations, one or more could refuse to vote to convict Trump regardless of overwhelming evidence. That would result in a hung jury.” — Former federal prosecutor Dennis Aftergut, to Salon

There’s no guarantee that Cannon will allow Smith to use Corcoran’s notes

“Corcoran’s notes are the pivotal evidence … But [Trump’s team is] setting into motion a plan to use the Florida federal court district’s auspicious assignment of a MAGA-loyal judge to essentially reverse time — by undoing the D.C. judge’s decision to hand over Corcoran’s notes. ... Sources said they will aim to have the South Florida federal judge — whom Trump himself appointed — dismiss the charge that Trump personally schemed up ways to interfere with the feds, arguing that Corcoran’s notes should have remained private due to attorney-client privilege.” — Jose Pagliery, The Daily Beast

Even if Trump’s convicted, a pardon is a very real possibility

“His fellow Republicans began discussing clemency even before Trump had entered a plea in the case in Miami… What we should want to avoid is a pattern of legal retribution and counter-retribution. … We aren’t talking about a pardon clearing the way for another White House bid, but rather as a consolation prize for someone who is vastly diminished and looking at potentially losing his freedom, too.” — Rich Lowry, Politico

Trump could even try to pardon himself, daring his own Supreme Court appointees to defy him

“The DOJ issued a legal opinion during the Nixon Administration that said presidents can’t pardon themselves. ... That doesn’t mean Trump wouldn’t try to challenge that precedent, given that he insisted in 2018 he had the ‘absolute right to pardon myself.’ If Trump does try to pardon himself, the issue is likely to play out in court and go to the Supreme Court, which has a 6-3 conservative majority including three Trump appointees.” — Alison Durkee, Forbes