Ranking the Four Criminal Cases Against Trump

Donald Trump and 18 associates were indicted in Fulton County, Georgia, on Monday for actions related to the 2020 election, and, conveniently, Mike is out this week. It’s a Sarah Collision Takeover!

The first thing to understand about the indictment is that Georgia’s criminal statutes are broader (much broader!) than federal law and cover things like willfully lying to any state official. On one hand, this makes sense: The federal government’s role in criminal prosecutions is supposed to be limited. Unlike the states, the federal government doesn’t have general police power. At the same time, parts of this indictment from District Attorney Fani Willis likely leave one wondering, Wait? That’s a crime in Georgia? Answer: yes. 

Many—I’d argue most—of the charges are on solid legal footing, but there’s a whole lot of spaghetti being thrown against the wall here and some strands are certainly stickier than others. I’ve got some First Amendment concerns about a few of the counts, and there are legitimate questions (already being raised by Mark Meadows) about whether some of the other defendants can move their cases from Georgia state court to federal court because they were federal officers acting in their official capacities during a lot of this mess. But that’s a little too deep in the weeds for us today.

Sure, Willis’ case may have a few weak spots on the legal side. But many of its detractors—including a bunch of right-wing folks on Twitter—are upset that Trump was seemingly indicted for all sorts of obviously lawful things, like giving a speech after the election or tweeting that his followers should tune in to One America News (OAN). These people don’t understand—or don’t want to understand—how a RICO indictment works. 

Let’s say Trump had been charged with attempted kidnapping. One of his defenses would inevitably be that he didn’t actually kidnap anyone, and that he never intended to—even if he talked about it sometimes. It wouldn’t be surprising, then, for prosecutors to include a line in the indictment about how he went to a hardware store, bought duct tape, and then turned right on Maple Avenue. Buying duct tape and driving on Maple Avenue aren’t illegal, and the prosecutors wouldn’t be saying they are. But those acts are part of the story—and importantly, two overt acts someone might take if they were planning to kidnap someone who lives on Maple Avenue. 

But enough about this indictment. (If you want a deeper dive, David and I talked about it at length in today’s episode of Advisory Opinions.) Let’s zoom out and assess the landscape now that we’ve got all four criminal cases against Trump to peruse. 

Ranking by Legal Strength

1. Florida. Most lawyers seem to agree special counsel Jack Smith’s federal documents case—regarding the allegedly willful retention of national security information at Mar-a-Lago—is the strongest one against Trump. It’s narrowly focused, the laws are clear, and the conduct alleged falls squarely within the bounds of the statutes applied. Based on the facts as we know them, anyone who did what Trump did would have been charged. Prudentially, Trump wasn’t president at the time any of the charged activities took place, so there’s no concern about whether he was just “doing president stuff.” In my mind, this case has the highest chance of securing a conviction. If it does, and Trump wins the 2024 election anyways, he very well may try to pardon himself. If the case is still ongoing at that point, it will almost certainly have to be put on hold until he leaves office. There are very few obvious avenues for appeal. The timing of this case is hard to gauge because of the classified documents involved.
2. Georgia. The case in Georgia we just discussed comes in at No. 2. Because the laws in the state are so broad, I think Fani Willis will, in many ways, have an easier go of things than federal prosecutors. There are some legal problems with parts of the case, but those issues won’t matter as long as prosecutors can secure convictions on some of the more straightforward counts. Prudentially, however, there’s a lot to dislike about this case. It’s being brought by a partisan prosecutor, will be heard by an elected judge, and includes a lot of extraneous and unnecessary charges and overt acts. The odds of a conviction here are high, and even if they were inclined to, neither a president nor the state’s governor would be able to issue Trump a pardon or grant him clemency. If Trump wins and the case is still ongoing, federalism would dictate (in my view) that it be put on hold until he leaves office. There are hundreds of local prosecutors in this country, and the structure of our Constitution suggests they can’t bring criminal charges against a sitting president that would distract the president from his or her duties—or harass them. We don’t yet have a great sense for what the avenues of appeal would be in this case, and based on what we’ve heard from former Georgia prosecutors, a trial is also likely a long ways off.
3. Washington, D.C. The federal case brought by the special counsel and focused on Trump’s actions after the 2020 election comes in third. Smith is relying on vague federal statutes and applying them in novel ways. The indictment itself doesn’t connect specific criminal charges with the conduct it’s describing, and as we’ve discussed at length, there’s also the issue of proving Trump’s mental state. On the prudential side, the strongest part of this case is the “fake electors” charge. This case has a high chance of securing a conviction, but I think it is the weakest on appeal. The charges themselves are open to a lot of different interpretations (what does it mean to act “corruptly”?) and the instructions that the judge gives to the jury about what they need to find in order to vote to convict is going to be scrutinized six ways to Sunday. The timing of this case might be its strongest suit—there’s good reason to think it could be the first case to make it to trial.
4. New York. Manhattan District Attorney Alvin Bragg’s case against Trump for payments he made to Stormy Daniels ahead of the 2016 election is by far the weakest case—both legally and prudentially. To get a conviction, Bragg would have to prove that Trump committed a federal campaign finance felony on the way to violating New York law—and there are a lot of very good election lawyers who will argue that federal law doesn’t even apply to these facts. As in Georgia, this indictment was also brought by a partisan prosecutor who has leaned into the politics of the case and is seemingly focused on headlines and fundraising. It’s a shame this case was the first to be announced, because it was the easiest for Trump and his supporters to dismiss as a partisan stunt. Even if Bragg managed to secure a conviction, that conviction would be very vulnerable on appeal. I’m not a mind reader, but I’d imagine every other prosecutor involved in a case against Trump wishes this one would go away.

Sarah’s (Unpopular) View

Too many people seem to take a black-and-white view of Trump: Either we should prosecute him for every single crime that could possibly be brought to bear because he shouldn’t be above the law and should be punished for putting our country through hell, or he shouldn’t be charged with with anything at all because he’s running for president and any charges are the corrupt manifestation of efforts to help Democrats win the next election. 

I think both extremes above actually have better arguments than their counterparts are willing to acknowledge—but they’re both fundamentally wrong. Justice is as much about trade-offs as economic policy or public health. Now that we’ve seen all four indictments, I think we got the balance wrong. Not because of some corrupt interests, but because the incentives of the individual people involved are not aligned with the incentives of the country—or the justice system—as a whole.

If I had a magic wand, Trump would be facing federal charges for the willful retention of national security information, obstruction related to the retention of those documents, and his role in sending in unauthorized slates of electors in the wake of the 2020 election. The end. These three actions are clearly unlawful under our current criminal statutes, and the conduct is straightforward—and provable. No state charges brought by elected politicians from the other political party who are running for reelection, no charges related to the more amorphous pressure campaigns against Mike Pence or Brad Raffensperger or whatever Jeff Clark was doing at DOJ, nothing about campaign finance violations from eight years ago. 

To be very clear, I don’t care what happens to Donald Trump—prison or lightning strike. I’ve never voted for him, and I think he has been catastrophic for our body politic. Trump should have been convicted in his impeachment trial for his behavior following the 2020 election. I wish the articles of impeachment had been more narrowly drawn by then-Speaker Nancy Pelosi and her team to get at the most egregious aspects of Trump’s conduct, and I wish Republicans had thought more about the future of our country and less about their immediate reelection prospects. 

I also think, however, that it’s corrosive to our justice system to bring criminal charges against conduct that, in some instances, has never been prosecuted before—or that gives license to apply these types of charges to future, far less obvious, conduct. Trump isn’t above the law, but the law shouldn’t bend to capture Trump, either.

The American people need to be able to understand the charges brought against a former president during a campaign. But I’m not even sure I—a lawyer and Justice Department alum—understand all of the counts in Georgia or in the federal January 6 case. There are no points for creativity when it comes to our criminal justice system. Quite the opposite, in fact. 

Our motto should have been: Keep it simple, stupid.