By Kenneth Tiven
The indictment may have surprised ex-president Donald Trump, but only because he expected it towards the end of April. Trump escaped two impeachment trials as president when the necessary two-thirds majority of 100 US senators wouldn’t convict him.
What might happen in a New York court room will depend on a 12 person jury in
a New York criminal trial. March was already a difficult month for Trump as several federal district court rulings forced close associates to answer subpoenas and appear before investigators looking at the cause of the January 6, 2021, insurrection incited by Trump and his team.
Arraignment for the as yet unrevealed indictment is forthcoming, the result of a New York Grand Jury probing an improper $130,000 payment to porn star Stormy Daniels in the weeks before the 2016 election. The prosecution claims it was an unreported campaign contribution additionally hidden unlawfully as a business expense.
Republican political leaders reacted with the expected outrage at the case, whose facts previously sent former Trump Layer Michael Cohen to jail for nearly two years.
The New York City prosecution is one of multiple criminal investigations that have engulfed Trump’s post-presidency.
He is also the focus of investigations in Georgia and Washington related to his
efforts to overturn Joe Biden’s election, plus Trump’s handling of classified material at Mar-a-Lago after leaving office. Trump denies any wrongdoing, preferring to claim political witch hunts by Democrats.
Thursday evening, he claimed they have lied, cheated and stolen in their obsession with trying to “Get Trump.” Two federal district court judges dealt serious blows to Trump’s desire to avoid responsibility for the January 6, 2021, insurrection he encouraged.
A ruling that no immunity exists for high officials in behaviour involving possible criminal liability means former vice-president Mike Pence must testify to a federal grand jury about his communications with Trump around the election efforts.
Judge James E Boasberg, just named as chief judge of the Federal District Court in Washington, dismissed separate legal efforts by Pence and Trump lawyers to limit any testimony regarding Trump repeatedly urging Pence to use his ceremonial role in the Congressional certification of Electoral College votes to block Biden’s victory.
Judge Boasberg’s immediate predecessor was Beryl A Howell, who a few days earlier had rejected Trump’s claim of executive privilege to stop his former chief of staff Mark Meadows and other top aides from testifying in the Justice Department probe led by special counsel Jack Smith into classified documents found at Trump’s home in Florida.
In the golfing terms Trump loves to use, these rulings were a triple bogey that may cost him his political quest for the Republican nomination in 2024.
Within 24 hours of the news of impending arraignment, even Trump’s most ardent detractors acknowledged how little ground could be gained by siding against the party’s embattled former president.
“As bad as it was for Trump, it was worse for DeSantis and everyone else,” said Mike Madrid, the Republican strategist and co-founder of the anti-Trump Lincoln Project.
“It rallies the base—there’s this rally around the flag effect for Trump. Second, probably most importantly, it just completely sucks the oxygen out of the room.”
Republican leadership insists any indictments will rally supporters for a 2024 election. Democrats suggest a majority of Americans are tired of Trump’s victimization rhetoric. A criminal conviction would not disqualify Trump from running for president or holding the office.
But campaign optics and logistics while navigating a legal case could get complicated. Trump and his advisers are ramping up their fundraising efforts and making the rounds of GOP lawmakers and party leaders, leaving his lawyers to negotiate his surrender to law enforcement and his security detail to coordinate logistics with police. This brings unusual security challenges to the courthouse complex in Lower Manhattan, even as it continues to dominate the political landscape.
Meadows is tangled in multiple other legal issues, but his testimony matters enormously as he was in continuous contact with Trump at the White House as the Capitol siege unfolded. Meadows was at the very centre of Trump’s plans to overturn his presidential election loss, including arranging Trump’s call to the Georgia state voting executive. He threatened him if he could not find the 11,799 votes Trump needed to win Georgia. Concurrently, the special grand jury probe led by the Atlanta area district attorney Fani Willis is expected to request judges to indict Trump.
The House January 6 committee evidence showed that Meadows had advance intelligence about the coming violence. Cassidy Hutchinson, Meadows “aide”, testified in Congress that Meadows told her that Trump, hearing that the insurrectionists were screaming “Hang Mike Pence”, replied that Pence “deserved it”.
Meadows has serious criminal exposure of his own. If he invokes his right to remain silent, the DOJ can decide whether to compel his testimony by granting him immunity. Such grants eliminate a witness’ criminal exposure and therefore his right to remain silent.
We don’t know Judge Howell’s reasoning for compelling Trump advisers to appear before Congressional hearings because her ruling is under seal. But we do know its basis: In two Supreme Court decisions involving Nixon’s 1974’s celebrated “White House tapes” case, the Court held that “the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
In a 1977 case involving Nixon after he’d left the White House, the Supreme Court said the incumbent president who succeeded him was “in the best position to assess the present and future needs of the Executive Branch” in deciding whether the privilege applies. Trump’s successor, President Joe Biden, has consistently declined to support Trump’s privilege claims around January 6.
Trump has not been silent on these matters. Last week, a rally in Waco, Texas drew 25,000 people, about half of those turning out two years ago. They heard Trump say: “You put me back in the White House and America will be a free nation once again.” Much of what he said was extremely impolite measured against the nasty language of politics in 2023.
Columnist Charles Blow in The New York Times said: “It’s a formula, and among die-hard Trump fans, it works. But as the charm of the formula fades, it may also prove to be Trump’s Achilles heel. He’s stuck in a backward-facing posture when the country is moving forward. Instead of vision, Trump offers revision… Trump is still exaggerating old accomplishments, re-litigating a lost election and marking enemies for retribution.”
—The writer has worked in senior positions at The Washington
Post, NBC, ABC and CNN and also consults for several Indian
channels.