Trump Has Options for Fighting Charges, but They May Face Challenges

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Former President Donald J. Trump and his advisers are scrambling to assemble a legal team for his first scheduled court appearance Tuesday after being charged with mishandling classified documents and obstructing government efforts to obtain these.

But even if Mr. Trump knows who will represent him, lawyers will face a more significant challenge: how to rebut charges in a criminal case where their options may be limited.

Although no one knows exactly how Mr. Trump the most serious cases he has faced, his options for using the legal system to delay the case, turn it into a political circus or paint himself as a victim of federal prosecutors are many. and various.

Even before his indictment, Mr. Trump, his allies and his lawyers have hinted at some of the arguments they might raise.

They include insisting that Mr. Trump had the right to obtain documents from the White House and that he had declassified them before leaving office. They may accuse prosecutors of misconduct or try to show that he was the victim of selective prosecution. And they can seek to have potentially damaging evidence excluded from trial or try to force the government to reveal classified material it wants to keep secret.

But all those claims can be hard to support in court.

Samuel Buell, a former federal prosecutor and a law professor at Duke University, said it is generally difficult to dismiss a federal indictment before going to trial, and that Mr. Trump and his lawyers will face an uphill battle in preventing the case from moving forward.

Their options here are extremely limited, Mr. Buell said, and the case is unlikely to be prevented from going to a jury.

The former president has long used lawyers as public relations aides, deploying them to make arguments often better suited to the campaign trail than the courtroom. But with the stakes so high this time, the challenge is to strike a balance between doing their clients’ bidding and following the rules of criminal procedure.

On Monday, Mr. Trump and his aides in Miami, where he has a golf club, and sought to discuss possible new lawyers after James Trusty and John Rowley, the two most actively representing him in dealing with the special counsel. Jack Smith, resigned the day after the charges were filed.

It remains unclear whether any other lawyers will attend Tuesday’s arraignment, including Todd Blanche, who now represents Mr. Trump in both the Florida federal case and a separate case in Manhattan related to hush money payments to a porn star.

Christopher M. Kise, a lawyer on Mr.’s broader team. Trumps, who is licensed in Florida, and Lindsey Halligan, who is also licensed there and was in a meeting with Justice Department officials shortly before the indictment was returned, are also possibilities, a person close to his team said.

A wild card was the manner in which the arguments were handled by Aileen M. Cannon, the federal judge in Florida assigned to the case and who made decisions favorable to Mr. Trump in the earlier phase of the investigation.

Still, the impeachment evidence itself is perhaps the most daunting problem facing any legal team Mr. Trump is putting together.

Over the weekend, one of Mr. Trump, Timothy Parlatore, and a man who served him as attorney general, William P. Barr, both appeared on television to state bluntly that the 38-count indictment against Mr. Trump and one of his aides were very thorough and posed a serious threat to the former president.

Quoting a conservative legal expert writing for The National Review, Mr. Barr said that if even half of the charges here were true, then Mr. Trump is toast.

It’s a very detailed indictment, and it’s very, very damning, Mr. Barr told Fox News Sunday.

Many of the tactics used in the defense of Mr. Trumps have shortcomings.

For months, as prosecutors investigated Mr. Smith’s case documents, lawyers and assistants of Mr. Trump that the former president can take any documents he wants from the White House under the Presidential Records Act is a misrepresentation of actual Watergate-era law.

Mr. aside Barr took that argument to Fox, calling it ridiculous on its face.

These are government documents that are official records, Mr. Barr said. These are not his personal records. Battle plans for an attack abroad or Defense Department documents about our capabilities are not in the universe Donald J. Trump’s personal documents.

Mr. Trump and his advisers have also repeatedly raised a separate claim: that he cannot be held accountable for having sensitive records on him at Mar-a-Lago, at his private club and residence in Florida, or at other properties that belong to him, because he declared them all before he left office.

To the dismay of some of his lawyers, Mr. Trump has said at times that he can automatically declassify records, even in his mind.

But a recording of him cited in the indictment undermines that claim.

In the recording, Mr. Trump telling guests at his golf club in Bedminster, NJ, that he wanted to show them a top-secret military plan, but couldn’t because it was secret. He apparently admitted that the document remained classified, which undermines the notion that he has declared everything he has and suggests the limits of his own power to declassify records as a former president.

Look, as president, I can declassify it, he said. Now I can’t.

Several legal experts said that Mr. Trump is likely to file a so-called selective prosecution motion and claim that Mr. Trump has been unfairly indicted when other politicians who have faced investigation for their own handling of classified documents, notably Hillary Clinton have not.

Mr. Buell called any attempt to make such comparisons a total loser, noting that Mr. Trump’s case involves a large number of classified documents and significant intercept evidence that any of it has emerged. in asking Mrs. Clinton.

However, Mr. Buell said lawyers can pursue a selective prosecution claim for PR purposes only.

The politics are such that they are likely to make a motion, he said.

Another motion that Mr. Trump’s lawyers could try and that Mr. Buell said would be difficult to win is a motion alleging that the grand jury process that led to the indictment was somehow marred by prosecutorial misconduct.

Mr. has filed a sealed motion. Trumps legal team in Federal District Court in Washington, where the inquiry began, is requesting all grand jury transcripts, looking for examples of prosecutors misusing the grand jury, according to a person familiar with the matter. .

That motion may be moot, however, after a Florida grand jury votes on the indictment. And, as Mr. Buell said, the normal remedy for grand jury misconduct is to discipline any attorney involved, not issue an indictment.

Two people familiar with the legal strategy of Mr. Trumps said his lawyers may file a motion to suppress records made by lawyer M. Evan Corcoran of his conversations with the former president about helping him comply with a federal subpoena from May 2022 requesting the return of all classified documents in his possession.

The notes, some of which Mr. Corcoran recorded on his iPhone and showed to Mr. Trump repeatedly trying to wiggle the subpoena, resulted in some of the most damning evidence contained in the indictment.

Rachel Barkow, a professor at New York University School of Law, said that Mr. Trump may have better luck with this motion than any of the others. He cautioned, however, that the ultimate success of the tactic will depend on the strength of Judge Beryl A. Howell’s previously sealed decision in Washington to release records in the case through a provision known as the felony-fraud exception.

In a memo explaining why he waived the typical protections of attorney-client privilege and gave prosecutors access to the records, Judge Howell said Mr. Trump likely misled Mr. Corcoran about the steps he took to comply with the subpoena. He added that the government has made a prima facie showing that Mr. Trump has committed a criminal offense, according to a person quoted in his writing.

Among the evidence Judge Howell considered in his decision was a transcript of audio notes made by Mr. Corcoran describing what he did in June to respond to the subpoena, a crucial time for investigators, according to the person briefed on the matter. -emphasis on what he wrote. The judge reviewed the notes privately before deciding whether to turn them over to prosecutors.

Mr. unsuccessfully fought. Trump against Mr. Corcoran had to produce his notes or testify before a grand jury. Mr. Corcoran, who has not been accused of any wrongdoing, argued against releasing a subset of the notes because they qualified as a work product of opinion, meaning his own impressions and legal theories that relevant to the case; prosecutors and the judge agreed.

Although none of these attempts to derail the charges worked, Ms. Barkow, they can still delay the case from trial until after the election. And if Mr. Trump wins, he could have his new attorney general dismiss the matter or perhaps even pardon himself.

I don’t think this case was properly resolved before the election, he said, and so the election may resolve it.

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