Below is my column in USA Today on crushing the numbers of the prosecution of former President Donald Trump. The most important may be the number one. In this case (as Three Dogs Night warned), one “is the saddest experience you’ll ever know.”
Here is the column:
The arraignment of Donald Trump is a historic moment as a former president stands in the dock to plead not guilty to a federal crime. It may foreshadow an equally historic trial in the Florida courthouse.
A few key numbers could ultimately determine whether the case is history in the making or much ado about nothing. Those numbers are 90, 70, 12 and 1.
90: Prosecutors are on the clock
Now that the Justice Department is on the docket, the countdown begins. There is a reason why special counsel Jack Smith dedicated one of his few public lines after the indictment to declare that the Justice Department is intent on pursuing “a speedy trial.” Smith’s greatest problem is not Trump, but time.
The Justice Department has long followed a rule that it should not take actions that could influence elections. While there are ambiguities around the meaning of this policy, many legal observers read this rule as kicking in 90 days before an election.
The first primary elections are scheduled for the first week of next February. That places the redline for prosecutors in the first week of November.
Since the Justice Department has generally followed this rule, a departure for Trump would reinforce the view of almost half of Americans that the charges are politically motivated.
However, a failure to try the case before November could mean pushing the trial until after the election.
Republican contenders are already suggesting that they may pardon Trump if elected, and Trump might even be able to issue himself a pardon if he is the winner. It could mean that Smith might never see a jury seated in this case, let alone a guilty verdict.
70: Trump trial could start as early as August
That is why Smith is invoking the constitutional right to a speedy trial − a right that protects the defendant, not the prosecutors. A speedy trial under the Sixth Amendment − and a federal statute − would set the case for trial within 70 days. That would put the trial before the end of August.
However, criminal defendants routinely waive the right to a speedy trial because it does not allow them to fully prepare for trial. The Trump team would be legally insane not to waive.
After a waiver, the Trump team can then delay matters further by filing a series of challenges on threshold issues − ranging from the use of the Espionage Act to relying on the compelled testimony of Trump’s former counsel. After a period of briefing before the trial court, appellate courts could delay the matter for months depending on whether they expedite review.
12: Selecting an impartial jury will be a daunting task
This case will require a particularly demanding jury selection process to find 12 jurors (plus alternates). Jurors are no longer expected to have no knowledge of a controversial case. Indeed, I do not think we would want a juror who has lived in such seclusion as to have avoided any knowledge of Trump, Mar-a-Lago or this fight over documents.
However, few people seem undecided on these charges. Indeed, this might be the most talked about and least read indictment in history. People seem content that the case confirmed either a pattern of Trump consistently flouting the law or the Justice Department unrelentingly targeting Trump. Identifying such bias will be a challenge for the court and counsel.
1: Neither the Defense nor the Prosecution Can Lose One
The last number is probably the most important for both sides.
For Trump, his team must run the table on all of the 37 counts. As a man who will turn 77 years old on Wednesday, Trump cannot allow for a single count to survive because the charges come with a potential of 10-12 years in prison. It would ordinarily be unlikely for a first offender in such cases to receive prison time, but this is no ordinary case.
Even half of the time served on one of these counts could be a terminal sentence for a man of Trump’s age. I am the founder of the Project for Older Prisoners, and I can attest of how prison ages people, particularly those with no prior experience with incarceration.
There are cases going both ways on sentencing. Egregious cases such as the one involving President Bill Clinton’s former national security adviser, Sandy Berger, resulted in a light plea. Berger, who stuffed classified documents in his clothes to remove them from a secure facility, was allowed to plead to a misdemeanor, received two years’ probation and was given only a three-year suspension – not a permanent revocation – of his security clearance.
Yet, Asia Janay Lavarello, a former civilian employee of the Defense Department, was recently sentenced to three months in prison. That was on on one count of mishandling such material, and Laverello pleaded guilty.
The number 1 also is looming for Jack Smith. Just as Donald Trump cannot lose on a single count, Smith cannot lose a single juror without facing a hung jury.
That’s the Trump prosecution by the numbers, and they add up to far more uncertainty than either side seems willing to acknowledge.
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