Trump and Special Counsel Lay Out Early Criminal Case Strategies in High-Stakes Legal Battle

The case of U.S. v. Donald J. Trump will pit a Justice Department prosecution supported by meticulous detail against a defense anticipated to downplay the significance of the criminal charges and emphasize the expansive presidential powers.

Trump’s legal team will likely rely on two key factors when mounting a courtroom defense against the 37-count indictment filed by special counsel Jack Smith: his past presidential powers to declassify documents and the upcoming 2024 presidential election, for which Trump is the early Republican front-runner. It will also attempt to benefit from the trial’s location in Florida.

Trump and his alleged co-conspirator, Walt Nauta, will be arraigned in Miami on Tuesday for a court battle that will span the majority, if not the entirety, of the 2016 presidential campaign.

In the indictment unsealed on Friday, Trump was charged with knowingly keeping classified documents after he left the White House in 2021 and then obstructing government efforts to retrieve them. Former federal prosecutors and legal experts viewed the 49-page document as a compelling case against Trump, as it contained text messages, phone records, and photographs of crates stored in various areas of Mar-a-Lago, including the former president’s South Florida home.

William Barr, who served as attorney general during the second half of the Trump administration, described the indictment as “very, very damning” on “Fox News Sunday.” While Trump has been the target of “false allegations” in the past, Barr stated, “he is not a victim in this case. He erroneously believed he had the legal right to possess those documents. These documents are among the nation’s most sensitive secrets.”

Ed O’Callaghan, a former senior Justice Department official in the Trump administration, said of the prosecution’s case, “The first thing that impressed me was their confidence. They are conveying a message by including so many specifics in the indictment.”

He has proclaimed his innocence. In a Saturday speech in Georgia, he declared, “This vicious persecution is an affront to justice.”

The former president, who is charged with violating the Espionage Act, conspiring to obstruct justice, and making a false statement to the government, reshuffled his legal team last week, naming former federal prosecutor Todd Blanche to lead his defense and dismissing two attorneys who represented him during the special counsel investigation. Trump stated that he intends to increase the size of the legal staff. Blanche declined to comment in response to a request.

Due to the inconsistency of Trump’s legal team, it is unclear how he will respond to the criminal charges, but it is likely that he will rehash a number of the arguments his attorneys have made in their protracted legal battle to avoid prosecution.

Many instances of alleged mismanagement of national-defense information have been successfully prosecuted by the Justice Department. Former prosecutors and legal experts believe that Trump’s defense team will emphasize the unprecedented nature of the case’s facts. As president, Trump possessed extensive authority over classified government records, a fact he could use to downplay the significance of the allegations against him.

Rob Kelner, a defense attorney who specializes in national-security cases, said, “One of the greatest challenges Jack Smith faces is convincing each of those 12 jurors that it could be a crime for Trump to share documents that he was free to share a couple of years ago, when he was president.”

The indictment highlighted two instances in which Trump allegedly shared classified information with individuals who were not authorized to receive it. In July 2021, at his golf club in New Jersey, he told a writer, a publisher, and two staff members about a secret attack plot against an unnamed country, Iran.

According to the indictment, he revealed a classified map to a representative of his political action committee several weeks later.

Trump’s defense team, according to Kelner, could emphasize that while the sharing of national-defense intelligence was improper, the former president did not share it with foreign nationals, “much less hostile actors.”

The defense team could also attempt to minimize the significance of the alleged offense. In an April letter to congressional Republicans, four of Trump’s then-attorneys wrote that the presence of classified documents at Mar-a-Lago “was the result of haphazard records keeping and packing” and that they had seen “absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws.”

The letter also criticized the Justice Department’s successful effort to have a judge breach attorney-client privilege and compel grand jury testimony from Trump attorney Evan Corcoran, who was referred to in the indictment as “Trump Attorney 1.”

In the government’s case that Trump conspired to obstruct justice and caused a fraudulent statement to be made to federal authorities, Corcoran plays a prominent role. The indictment alleges that Trump and his valet, Nauta, deceived the attorney by removing document cases from the Mar-a-Lago storage area prior to the lawyer’s search for subpoenaed records. As a consequence, according to the indictment, a false certification was submitted to the government stating “that all documents with classification markings had been produced, when in fact they had not.”

Former attorney Tim Parlatore and three others wrote that Corcoran’s compelled testimony “was clearly a sub-optimal and constitutionally dubious substitute” for a more thorough consent-based search of the property. According to former prosecutors, Trump’s attorneys may aim to challenge Corcoran’s testimony before trial.

On obstruction charges, Trump’s attorneys could also contend that he was unwilling to cooperate because he has been harassed by investigators that the former president has described as being biased.

William Devaney, a former federal prosecutor and partner at Baker McKenzie, said, “If there is one juror who believes Donald Trump has been treated unfairly, that’s enough to hang the jury.”

The venue of the trial plays a role in both the prosecution and defense strategies. After months of investigation with a Washington grand jury, Smith ultimately used a South Florida grand jury to indict Trump and Nauta. This places Trump’s trial in a state governed by Republicans, where potential jurors may be more receptive to arguments that downplay the criminal charges and portray the former president as being unjustly persecuted.

For the Department of Justice, conducting the trial in South Florida could eliminate Trump’s claim that he could not receive a fair trial in Washington.

“Florida makes it harder for the former president to argue about the inappropriateness of the venue,” said Sarah Krissoff, a former federal prosecutor and partner at Day Pitney.

Trump’s case has been assigned to Trump’s appointee to the federal trial court in South Florida, Judge Aileen Cannon. Cannon previously presided over a lawsuit the former president filed against the Federal Bureau of Investigation’s search of Mar-a-Lago in August of last year. Trump was granted Cannon’s request to appoint a special master to examine documents seized from the former president’s South Florida residence and private resort. A tribunal of the court of appeals later reversed her decision and dissolved the review process, stating that there was no justification for Trump to be treated differently than any other person or entity subject to a search warrant.

Unless she recuses herself, Judge Cannon will be in charge of all pretrial matters, including the scheduling of the high-profile proceeding, unless she recuses herself.

Smith stated on Friday, in his first public remarks as special counsel, that his team would pursue a “speedy trial.” According to legal experts, Smith’s team will likely attempt to schedule Trump’s federal trial before the separate criminal trial scheduled for March 2024 in a separate case brought against the former president by the Manhattan district attorney.

Trump has raised funds from his indictment, and he may seek to delay his trial until as late in 2024 as possible—possibly even after the 2024 presidential election. If elected next year, Trump could attempt to pardon himself using the expansive presidential powers, although such an attempt has never been considered by the courts. He could be granted clemency by the next president-elect.

With the upcoming election in mind, Trump’s legal team may seek to slow down the case by filing petitions to dismiss the charges, limit the Smith team’s evidence and witnesses, and possibly raise questions about the conduct of federal investigators.

“The last thing he desires,” Krissoff said, “is a speedy trial with all of the prosecution’s witnesses testifying against him.”