The first grand jury indictment against Donald Trump, like so many highly-anticipated gotcha moments involving the former president, landed with a thud this week.
Manhattan District Attorney Alvin Bragg’s 34-count bill of goods failed to impress legal and political observers across the spectrum. Even Ruth Marcus, associate editor for the Washington Post, admitted the legal basis for the charges is “unnervingly flimsy at worst.”
News coverage of Bragg’s faceplant is quickly disappearing from the front pages as all desperate eyes now turn to Jack Smith, the mysterious figure appointed by Attorney General Merrick Garland last year ostensibly to take over the Justice Department’s investigation into Trump’s culpability for January 6 and alleged mishandling of classified documents. As I explained here, Smith is special counsel in name only; the team of investigators and prosecutors who initiated the first set of inquiries simply changed letterhead.
Given the targets of Smith’s recent subpoenas, we can surmise there is nothing independent or impartial about his behind-the-scenes work. In rapid succession, Smith has successfully sought testimony from Trump’s inner circle, including former chief of staff Mark Meadows and White House lawyer Evan Corcoran.
For the first time in history, a vice president will testify before a grand jury considering evidence of crimes committed by his former boss. Mike Pence, after winning partial immunity, reportedly will answer questions about his exchanges with Trump in the weeks leading up to the protest at the Capitol. Oddly, Pence will not be compelled to discuss what he did on January 6—a dubious protection considering his key presence throughout the day and into the next morning.
Of course, the public can’t read any of the government’s arguments since everything remains under seal. Ditto for court orders granting Smith’s every wish. As the most norm-crushing investigation in history unfolds in the nation’s capital, judges without explanation keep the files out of the view of the American people.
Out of view, that is, except for what D.C. apparatchiks want to spin. Selective leaks keep Smith’s inquiry in the headlines. CNN disclosed this week that Smith’s team is focused on postelection discussions in the Trump White House related to the possible seizure of voting machines. “Details about the secret grand jury testimony and closed-door interviews, neither of which have been previously reported, illustrate how special counsel Smith and his prosecutors are looking at the various ways Trump tried to overturn his electoral loss despite some of his top officials advising him against the ideas.”
The coordinated leak strategy is intended to give the appearance that the prison walls, once again, are closing in on Trump.
This time, however, it’s true.
Smith’s multipronged investigation—another recent leak indicated Smith’s team is considering obstruction charges tied to the classified documents investigation—by far represents the most dangerous legal threat Trump has ever faced. Working with a limitless budget, no media scrutiny, zero congressional oversight, compliant federal judges, and abundant case law providing a clear pathway to multiple felony charges related to January 6, Smith is in the driver’s seat. And he knows it.
A D.C. grand jury likely will indict Trump on multiple counts for his key role in the events of January 6. Grand juries are composed of the same voters who sit on regular juries—and that is terrible news for Trump. Washington, D.C., is the most heavily Democratic city in the country, even more so than New York City and San Francisco, and grand juries since January 6 have issued hundreds of federal indictments representing thousands of criminal counts. The Justice Department has a near-perfect conviction rate for January 6 defendants; judges refuse to move trials out of D.C. despite overwhelming proof Trump supporters cannot receive a fair trial in the nation’s capital.
Trump almost certainly will be charged with obstruction of an official proceeding, the felony slapped against at least 250 January 6 defendants punishable by up to 20 years in prison, and conspiracy. He could face other offenses such as tampering with witnesses and/or evidence if Smith shows proof that Trump tried to interfere with any aspect of the investigation, including the work of the January 6 select committee.
But Smith might decide to pursue seditious conspiracy charges, which poses the greatest legal peril for Trump. Several men have been convicted or pleaded guilty to the rare charge, a crime comparable to treason. Five members of the Proud Boys are now on trial for seditious conspiracy; prosecutors have cited Trump’s off-handed (and prompted) remark for Proud Boys to “stand back and stand by” during the September 2020 presidential debate as a call-to-action of sorts that motivated the group’s unarmed “attack” on the Capitol.
Should any or all of the Proud Boys defendants be found guilty—the case is expected to finally go to the jury next week after four months of arguments—the convictions will add fuel to Smith’s pursuit of a similar charge against Trump.
When he is indicted, Trump will confront the same legal and judicial circle of hell that has destroyed the lives of hundreds of Americans and counting. Judges he appointed will automatically be disqualified—not that it makes a difference since his judges have acted as badly, and in the case of Judge Timothy Kelly, worse than jurists appointed by Democratic presidents. His case will probably be assigned to an Obama-appointed judge such as Amit Mehta or James Boasberg, the new chief judge.
From there, Trump can expect a change of venue motion to be denied. The judge handling his case will cite the handful of acquittals as evidence Trump can get a fair trial in Washington. Any appeal will be denied by the D.C. Circuit.
And to fulfill the bloodlust on the Left to finally see Donald Trump behind bars, there is a chance Smith will request, and a judge will grant, pretrial detention for the former president. Dozens of January 6 defendants charged with nonviolent obstruction or conspiracy counts have been denied release by D.C. judges; most have no criminal record and committed no violent act that day.
But none of the facts matter. Trump will be treated no differently in the banana republic-like atmosphere in the D.C. federal courthouse.
After all, this is the same judicial circuit that has stripped Trump of executive privilege protections and insisted, as Judge Tanya Chutkan wrote in her 2021 order denying Trump’s first privilege claims, “Presidents are not kings, and [Trump] is not President.”
And that is how Trump will be treated. Not as a former president but as a traitor—the man responsible for inciting the “insurrection” that still traumatizes so many judges and jurors to this day, the leader who attempted to “overthrow democracy” on January 6.
Decent Americans still want to believe this can’t, and won’t, happen. But it is a near-certainty for which the country, flat-footed Republican leaders in particular, must prepare. Bragg’s flop was merely the unsatisfying appetizer for the feast on Donald Trump that is about to come.