Tracking the Trump criminal cases

Trump’s efforts to subvert the election were extensive, well documented and largely in public view. He and his allies spread lies about voter fraud and stoked the protests that led to the Jan. 6 attack.

Many of the top aides in the Trump administration testified to the grand jury, giving investigators remarkable insight into what was happening privately in Trump’s orbit during the critical two-month period and perhaps providing important evidence about Trump’s state of mind. Pence — who resisted Trump’s pressure to try to annul the election results on Jan. 6 — was the most notable witness. Others included Trump’s former chief of staff, Mark Meadows; his White House counsel, Pat Cipollone; his national security adviser, Robert O’Brien; and his senior policy adviser, Stephen Miller.

Trump may argue that his statements about the 2020 election were protected by the First Amendment or that, in challenging the election, he was merely relying on the advice of lawyers.

A president seeking to impede the peaceful transfer of power is unprecedented in American history — and the attempt to hold him legally accountable is similarly unprecedented. Some of the legal theories that prosecutors may rely on — like applying the “conspiracy against rights” statute to the context here — may raise novel issues that have rarely been tested in court.

Trump’s efforts to undo the Georgia results were based on blatant falsehoods and were largely conducted out in the open. His phone call to Raffensperger was recorded.

Eight Republican activists who falsely claimed to be the state’s presidential electors for Trump have taken immunity deals and have agreed to cooperate with Willis.

A local prosecutor charging a former president with election interference is unprecedented in American history. Trump may claim he is immune from being prosecuted for actions he took while he was still president.

Trump might argue that his statements about the Georgia results are protected by the First Amendment or that he lacked criminal intent because he genuinely believed he won the election.

Many legal experts, including conservatives, have described Smith’s indictment as laying out an exceptionally persuasive case. It contains evidence from Trump’s own statements — including one caught on tape — that he knew he was not authorized to retain classified material but did so anyway. Evidence of obstruction — including instructing his aides to move boxes around or destroy security footage, and apparently suggesting to his lawyer that he conceal documents from the FBI — is similarly compelling.

Trump seems to have publicly admitted that he knowingly held onto the documents after he left the White House. During a CNN town hall in May 2023, Trump said he “took the documents” because he was “allowed to.”

The Presidential Records Act makes clear that presidential documents are property of the federal government, not an outgoing president. And multiple federal laws tightly control how classified documents can be viewed and stored. Smith has pointed to a 2009 executive order as pivotal, saying Trump would have required a written waiver of the order’s “need-to-know requirement” for access to classified information after his term in office.

​​While he was president, Trump had broad authority to declassify documents. If Trump could show that he declassified the records at issue before he left the White House, he may be able to undermine the charges. To date, however, there is no evidence that Trump did so.

In a series of motions to dismiss, Trump’s lawyers challenged the charges on a variety of fronts. They argued, for instance, that because many of the documents were transported to Mar-a-Lago before Trump’s term ended in January 2021, he implicitly designated them as “personal records,” beyond the scope of the Presidential Records Act. They also alleged that the prosecution was politically motivated and that Smith’s appointment as special counsel was unconstitutional.

The prosecution may have received an unlucky break when the case was assigned to Judge Aileen Cannon, a Trump appointee who has a history of issuing rulings that are highly favorable to Trump. She has broad authority over both the pace of the proceedings and a slew of pretrial litigation on the admissibility of evidence and other issues.

Cohen, the man who arranged the hush money payments, has turned against Trump. He is likely to testify for the prosecution.

Prosecutors have evidence of other hush money payments that Trump arranged to cover up damaging stories in the run-up to the 2016 election. That suggests a coordinated effort to help his campaign rather than merely to avoid personal embarrassment — a key issue that could determine whether the Daniels payoff violated election law.

In rejecting Trump’s motion to dismiss, the judge lowered the bar for the underlying crime element of the felony charges by affirming the prosecution’s argument that Trump does not have to be convicted of the underlying crime for the charges to stand. Rather, “it is his intent to commit those other crimes that carries the day,” the judge wrote.

Elevating the business-records charges into felonies by linking them to an underlying federal election violation would be a novel legal theory that would test the interaction of state and federal laws.

Trump’s legal team may portray the Daniels payoff as a private matter and the charges themselves as technical bookkeeping violations, too insubstantial to justify criminal charges against a former president.

Even if Trump is convicted, he is unlikely to face any prison time. At the felony level, falsifying business records carries a sentence of up to four years in prison, but first-time offenders, particularly in non-violent cases, often receive probation instead.