{"id":1906183,"date":"2023-03-28T17:55:22","date_gmt":"2023-03-28T21:55:22","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/with-untested-cases-challenging-trump-legal-experts-weigh-in-on-his-greatest-vulnerabilities\/"},"modified":"2023-03-28T18:02:44","modified_gmt":"2023-03-28T22:02:44","slug":"with-untested-cases-challenging-trump-legal-experts-weigh-in-on-his-greatest-vulnerabilities","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/with-untested-cases-challenging-trump-legal-experts-weigh-in-on-his-greatest-vulnerabilities\/","title":{"rendered":"With Untested Cases Challenging Trump, Legal Experts Weigh in on His Greatest Vulnerabilities"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">26<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fwith-untested-cases-challenging-trump-legal-experts-weigh-in-on-his-greatest-vulnerabilities%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1906183&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div class=\"post_content\">\n<p>Former President Donald Trump currently faces four lawsuits and investigations with potential criminal liabilities.<\/p>\n<p>As the leading Republican presidential candidate for 2024, Trump has characterized these legal challenges as part of a political \u201cwitch hunt\u201d and attempts to hurt his candidacy. Across the aisle, Trump\u2019s critics describe the investigations as the proper application of the rule of law.<\/p>\n<p>The former president\u2019s legal troubles\u2014those potentially carrying criminal liabilities\u2014include a potential indictment on money Trump allegedly paid to adult entertainment actress Stormy Daniels; potential charges related to election interference in Georgia; a probe into Trump\u2019s handling of classified documents at his Mar-a-Lago property; and an investigation into Trump\u2019s alleged interference with the transfer of power after the last presidential election.<\/p>\n<p>Jared Carter, a Professor at Vermont Law school, told The Epoch Times that the legal cases carrying criminal liabilities in at least three jurisdictions\u2014New York, Washington D.C., and Georgia\u2014carry an inherent risk for the former president. The Epoch Times asked legal experts to evaluate Trump\u2019s greatest vulnerabilities as prosecutors signaled they would employ legal strategies in their cases against him that had never been used before. Here\u2019s what they said.<\/p>\n<h2>Alleged Hush Money<\/h2>\n<p>After Trump announced what he claimed would be his imminent arrest on Saturday, March 18, a probe launched by Manhattan DA Alvin Bragg into an alleged payment from Trump to Daniels quickly flooded headlines in the news cycle.<\/p>\n<p>Though charges have yet to be announced, Bragg is considering charges on an alleged payment from Trump to Daniels to ensure her silence over an alleged affair in 2006. The prosecutor\u2019s criminal case appears to be centered on whether Trump documented that payment as false business records in the Trump Organization\u2014thereby committing a state offense\u2014with the intention to cover up or commit violations of federal campaign finance laws.<\/p>\n<p>According to Alan Dershowitz, Professor Emeritus at Harvard Law School, a requirement for Bragg to bring his case is to elevate the misdemeanor-level charge of falsifying records to a felony by combining it with the federal campaign finance violation charge.<\/p>\n<p>\u201cI taught criminal law for 50 years at Harvard, and the one rule was, \u2018no creativity is permitted by prosecutors\u2019\u2014the law has to be clear,\u201d Dershowitz told The Epoch Times in an interview on March 18. The scholar characterized Bragg\u2019s approach as high-risk, and said an appellate court would overturn Trump\u2019s indictment if the case ever got that far.<\/p>\n<p>Before a court decides on the merit of this case, however, Bragg faces another legal hurdle with the statute of limitations on the charge he would bring, trial attorney John O\u2019Connor told The Epoch Times.<\/p>\n<p>The felony charge carries a statute of limitation of five years according to New York law, and would have expired under normal circumstances\u2014given that the alleged payment was made in 2016, or about seven years ago. O\u2019Connor said Bragg may attempt to use a provision that says the statute of limitations clock is stopped when \u201cthe defendant was continuously outside\u201d of New York.<\/p>\n<p>The issue here therefore hinges on the court\u2019s interpretation of \u201ccontinuously,\u201d O\u2019Connor said, taking into consideration the fact that Trump lived in Washington D.C. and Florida for most of the time since the alleged felony\u2019s time of commission.<\/p>\n<p>Notwithstanding the spotlight on the case, Dershowitz, O\u2019Connor, and Senior Vice President for Legal Studies at the Cato Institute, Clark Neily, agree that Bragg\u2019s case stands on a shaky legal foundation, and is likely the weakest among the four criminal cases Trump currently faces.<\/p>\n<p>\u201cWhen you go after somebody who\u2019s running for president, you better have a slam dunk\u2014and this one isn\u2019t even close,\u201d Dershowitz said.<\/p>\n<h2>Jan. 6 Probe<\/h2>\n<p>After Trump announced his presidential bid in November, Department of Justice (DOJ) head Merrick Garland appointed Special Counsel Jack Smith to lead a probe into Trump\u2019s alleged criminal conduct after the 2020 election.<\/p>\n<p>Smith, who pledged an expeditious investigation as special counsel, is operating in a nominally independent manner from the DOJ to avoid a perceived conflict of interest. He can choose to recommend charges after his investigation.<\/p>\n<p>Past DOJ-appointed special counsels have recommended charges that led to the indictment of Scooter Libby, a former top aide to then-Vice President Dick Cheney, and the impeachment of former president Bill Clinton.<\/p>\n<p>Recent DOJ-appointed special counsels include Robert Mueller, whose work led to the guilty plea of former national security adviser Michael Flynn in 2017, and John Durham, who probed the origin of the FBI\u2019s investigation into alleged collusion between Trump and Russian entities during the 2016 elections.<\/p>\n<p>In Trump\u2019s case, Smith has been looking into \u201cwhether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote held on or about January 6, 2021,\u201d according to a DOJ statement published in November 2022.<\/p>\n<p>One aspect of Smith\u2019s case would include a potential incitement charge against Trump, Carter said.<\/p>\n<p>Trump told his supporters at the \u201cSave America\u201d rally near the Capitol on January 6, 2021, to \u201cpeacefully and patriotically make your voices heard\u201d in challenging the result of the 2020 election that Trump said he had won by a landslide. He also said, \u201cwe fight like hell, and if you don\u2019t fight like hell, you\u2019re not going to have a country anymore.\u201d<\/p>\n<p>According to Carter, the incitement charge would be difficult for Smith to bring because of the First Amendment\u2019s broad protection of speech.<\/p>\n<p>\u201cOne exception to the First Amendment protection of speech is for incitement, and there\u2019s a very specific test that the courts use in determining whether something constitutes incitement,\u201d Carter said, in reference to the Brandenburg Test, which allows states to forbid actions that are directed to inciting or producing imminent lawless action and is likely to incite or produce such action.<\/p>\n<p>\u201cThat\u2019s a high burden for the government to meet\u2014and, I think, rightfully so\u2014we want robust political speech,\u201d Carter said. \u201cWe don\u2019t want politicians to self-censor.<\/p>\n<p>\u201cThe upshot is: courts are generally going to be reticent to criminalize speech,\u201d the professor added. \u201cSo, I think from a pure First Amendment perspective, an incitement charge for the speech on Jan. 6 is going to be a difficult case for a prosecutor to bring.\u201d<\/p>\n<p>O\u2019Connor echoed Carter\u2019s view, adding that a \u201cstrong line\u201d of First Amendment precedent cases exists that would make it difficult for the government to demonstrate that Trump \u201cintended the Capitol be ransacked in the places where it was.\u201d He believes the case would likely be ruled in Trump\u2019s favor if it gets to the Supreme Court.<\/p>\n<p>\u201cFiery speech has always been considered within the ambit of the First Amendment,\u201d O\u2019Connor said.<\/p>\n<p>Andrew Gould, a former judge at the Arizona Supreme Court, told The Epoch Times that another piece of the puzzle that prosecutors may consider is Section Three of the Fourteenth Amendment, an obscure provision that bars officials who have \u201cengaged in insurrection or rebellion\u201d from holding office. Congress introduced the passage in the 19th century to bar members of the Confederacy in the American Civil War from holding office.<\/p>\n<p>The question of whether Trump\u2019s speech on Jan. 6, 2021, can be characterized as engaging in insurrection and rebellion is a question that would have to be determined in the courts\u2014should Smith bring forward a charge on this ground.<\/p>\n<p>Even if Smith secures an indictment related to this provision, many legal questions remain that have not been tested in the courts, Gould said.<\/p>\n<p>\u201cIs an indictment of former President Trump for what happened on January 6 sufficient to bar him from holding office again, or does it require conviction? So that\u2019s one issue,\u201d the former judge said.<\/p>\n<p>\u201cWould [the provision] apply to the President? And then what\u2019s required to trigger that? Does it require a conviction? Does it require having been impeached for it?\u201d the former justice asked, noting that any prosecution of Trump along this line would be \u201cuntested.\u201d<\/p>\n<p>\u201cI think that\u2019s an issue that could well go all the way to the United States Supreme Court if the January 6 prosecution goes forward,\u201d Gould said.<\/p>\n<p>Notwithstanding the novel nature of the legal theory in this case, however, Dershowitz believes that the odds are in Trump\u2019s favor.<\/p>\n<p>\u201cThe only way he can be disqualified is if they can prove that he actually fought in the Civil War for the South,\u201d the legal scholar said.<\/p>\n<p>An additional scope of Smith\u2019s investigation could include Trump\u2019s alleged efforts to seek an alternate slate of electors during the certification process of the 2020 election.<\/p>\n<p>According to O\u2019Connor, this conduct was within the bounds of democracy, and thus this case would not give rise to \u201cone of Mr. Smith\u2019s stronger potential charges against Trump.\u201d<\/p>\n<p>\u201cI do not think that trying to put forth an alternate slate is criminal,\u201d O\u2019Connor said. \u201cThis is an exercise in democracy, no matter how incorrect some may say it is.<\/p>\n<p>\u201cIn my opinion, this is a very weak case, especially since the prosecution must prove beyond a reasonable doubt that Trump intended to act illegally,\u201d the expert said.<\/p>\n<h2>Classified Documents Probe<\/h2>\n<p>On February 9, 2021, the National Archives and Records Administration (NARA) made a referral (pdf) to the DOJ that led the federal agency to launch a criminal investigation into the former president\u2019s handling of classified documents.<\/p>\n<p>That investigation spawned the FBI raid at Trump\u2019s Mar-a-Lago resort last August, followed by the court\u2019s publication of the FBI\u2019s search warrant, giving clues as to what charges may arise from the former president\u2019s alleged mishandling of classified documents.<\/p>\n<p>They include 18 U.S.C. \u00a7793\u2014mishandling defense information, \u00a71519\u2014record alteration or destruction with the intention to obstruct an investigation, and \u00a72071\u2014alteration or destruction of public records.<\/p>\n<p>In an August 30, 2021, court filing\u00a0(pdf) following the raid, the DOJ said it sought the classified documents by issuing a grand jury subpoena in May 2021. The department alleged that after the subpoena was issued, Trump \u201cconcealed and removed\u201d government records, and that \u201cefforts were likely taken to obstruct the government\u2019s investigation,\u201d leading to the department\u2019s application for a raid.<\/p>\n<p>Trump, in statements made on Truth Social, defended his conduct by saying that the documents were protected by executive privilege, or the inherent presidential privilege to withhold information from the public; the presidential authority to declassify documents; and attorney-client privilege.<\/p>\n<p>Smith took over this investigation when he was appointed DOJ special counsel in November 2022.<\/p>\n<p>Declassification questions aside, while a technical charge of mishandling records is possible, O\u2019Connor said, he believes that Smith would shape the case around a charge involving the obstruction of justice, which would require proving Trump\u2019s intention to knowingly\u00a0affect the availability or quality of evidence during an official investigation.<\/p>\n<p>\u201cIf the government can prove that Trump took efforts to hide documents from the government, in order that the government does not seize them, then there is a potential obstruction of justice, and false statements charge against Trump,\u201d O\u2019Connor said.<\/p>\n<p>\u201cSo, the proof in that pudding would have to be some statement by an underling that Trump told him or her to move documents in order to hide them from authorities,\u201d he added. \u201cAnd if any of them say, \u2018yes, Trump told me that he didn\u2019t want this or that classified record seized, and he wanted me to bring it to another room or put it in a separate box,\u2019 or something like that\u2013I think you\u2019ve got a cross.<\/p>\n<p>\u201cIf I were Jack Smith, that\u2019s where I would go on this,\u201d O\u2019Connor said. \u201cI would talk to the underlings, a lot of whom, apparently, are talking.\u201d<\/p>\n<p>The consequences of this case could vary drastically, Neily told The Epoch Times, and could range from a low-level mishandling of documents charge with no prison time to a conspiracy charge relating to national security\u2014which could carry 10 to 20 years in prison.<\/p>\n<p>Neily added that the case is too early to call, considering that the strengths of Smith\u2019s factual case, including witnesses and documentary evidence, and his legal case\u2014the ability to infer the elements of the offenses from the available evidence\u2014are all as yet unclear.<\/p>\n<p>Meanwhile, Dershowitz pointed to another dynamic that may play into Smith\u2019s case: the DOJ is conducting a parallel investigation after finding classified records at President Joe Biden\u2019s home and the Penn-Biden Center in Washington.<\/p>\n<p>\u201cThey will never dream of indicting Trump unless they are also willing to indict Biden,\u201d Dershowitz told The Epoch Times. \u201cThe public will not stand for two people, both Presidents engaged in comparable conduct\u2014one gets prosecuted, and the other doesn\u2019t\u2014it would never happen.\u201d<\/p>\n<p>But according to O\u2019Connor, the investigation against Biden may not play in Trump\u2019s favor after all, considering the political leanings of DOJ prosecutors.<\/p>\n<p>\u201cI suspect that there will be a soft-ball handling of [the Biden] documents case, even though to me, it seems pretty clear that he had the motive to keep the very important documents he kept, which were presidential briefing,\u201d the attorney said. \u201cThey\u2019re the best and juiciest classified documents one can get.<\/p>\n<p>\u201cI\u2019m convinced that his greatest vulnerability is at the Mar-a-Lago situation,\u201d O\u2019Connor said of Trump.<\/p>\n<h2>Georgia Election Interference Probe<\/h2>\n<p>In 2021, Fulton County DA Fani Willis launched and led a special-purpose grand jury investigation into a phone call between Trump and his legal team and Georgia\u2019s Secretary of State Brad Raffensperger and his team, in which Trump allegedly tried to pressure the official to investigate widespread allegations of voter fraud.<\/p>\n<p>\u201cAll I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state,\u201d Trump allegedly told Raffensperger during the phone call on Jan. 2, 2021, a transcript of which was released by media organizations.<\/p>\n<p>Willis characterized Trump\u2019s wording (pdf) during the call as evidence of \u201ccriminal disruption\u201d of the 2020 election, and has based her case on charges around that allegation. The grand jury heard testimony from Trump\u2019s former associates, including Rudy Giuliani and former National Security Advisor Michael Flynn. Emily Kohrs, the foreperson of the jury, told media outlets in February 2023 that the group recommended indictments.<\/p>\n<p>A February 10, 2021, letter that Willis sent to Georgia Governor Brian Kemp shone a light on the charges she may pursue, which include soliciting election fraud, lying to state officials, and conspiring to interfere with the 2020 election.<\/p>\n<p>According to Dershowitz, Willis\u2019s charges would not hold up considering the face value of Trump\u2019s wording during the call with Raffensperger.<\/p>\n<p>\u201cBecause what he said is, \u2018we have to find\u2019\u2014not invent, not concoct\u2014\u2019find.\u2019 Find means that it\u2019s there\u2014just a question of finding them\u2014so that\u2019s not a crime,\u201d Dershowitz said.<\/p>\n<p>O\u2019Connor agreed with Dershowitz\u2019s view, adding that the case is undercut by a demonstrable belief on Trump\u2019s part that there was significant fraud in the 2020 election.<\/p>\n<p>\u201cThat charge will never make it,\u201d O\u2019Connor said. \u201cIt was very clear that Trump felt that there were voters who had wrongfully voted, and he was asking the Secretary of State to find which voters had been wrongfully voting, that\u2019s all. So, I don\u2019t think there\u2019s anything to that.\u201d<\/p>\n<h2>Defendant Unlike Any Other<\/h2>\n<p>\u201cIf I was the former president\u2019s lawyer, I\u2019d certainly be advising my client to be quiet, to stay out of the public eye\u2014and let\u2019s deal with these legal issues,\u201d Carter told The Epoch Times.<\/p>\n<p>That\u2019s certainly not Trump\u2019s style. The former president has posted avidly\u00a0on Truth Social, his social media platform, following major developments in the four cases\u2014and denied wrongdoing in any of them.<\/p>\n<p>This showiness may nonetheless work in Trump\u2019s favor, as he may soon navigate uncharted waters where a former U.S. president is facing criminal charges, Neily told The Epoch Times in an interview.<\/p>\n<p>This has to do with Trump\u2019s immunity to coercion from prosecutors, Neily said.<\/p>\n<p>When a federal prosecutor has a strong motivation to convict a defendant, he explained, the strength of the prosecutor\u2019s case, including the strength of the legal theory and evidence, has little import on the equation.<\/p>\n<p>\u201cBecause nearly everybody can be coerced into pleading guilty in our system,\u201d Neily said. \u201cThe amount of pressure that prosecutors can bring to bear on ordinary defendants to plead guilty is beyond anything, I think, that ordinary people can imagine and that even includes threatening to indict a defendant\u2019s family members simply to exert plea leverage on the defendant.<\/p>\n<p>\u201cI don\u2019t think that will work with Donald Trump, because I think they\u2019re unwilling to put on public display such nakedly thuggish tactics,\u201d Neily said. \u201cI don\u2019t think Donald Trump can be induced to plead guilty, because I think he\u2019s got the resources and the platform and the mindset to resist those efforts.\u201d<\/p>\n<p>Another facet of Trump\u2019s case is that prosecutors would be required to weigh the odds of getting a jury to convict Trump, something they rarely have to do nowadays, Neily said, noting that 98.3 percent of all federal criminal convictions came from guilty pleas last year, rather than from a jury verdict.<\/p>\n<p>\u201cThat is a calculus that prosecutors have grown increasingly maladept at performing because they have so little experience in actually performing it,\u201d the expert said. \u201cThey just don\u2019t get that opportunity very often, because they are so adept at inducing people to plead guilty\u2014and that will not work in this case, in my estimation.\u201d<\/p>\n<h2>\u2018Get Trump\u2019<\/h2>\n<p>According to Dershowitz, the legal cases against Trump are a display of \u201ctargeted prosecution,\u201d in which prosecutors have used never-seen-before approaches to get Trump.<\/p>\n<p>\u201cThere seem to be two systems of justice in America\u2014one for the rest of us, and the other for Trump\u2014and that\u2019s the thesis of my book, \u2018Get Trump,\u2019\u201d Dershowitz said. \u201cThere\u2019s is a special system of targeted injustice against Trump, and this is coming from a liberal Democrat who voted against him twice.<\/p>\n<p>\u201cNobody\u2019s ever been prosecuted for these things, and you can\u2019t go after a man running for president under rules and statutes that have never been previously used,\u201d Dershowitz said of the four cases.<\/p>\n<p>\u201cThey\u2019re just rummaging through the law books and doing everything they can to get him, but I don\u2019t think they\u2019ve succeeded,\u201d he added.<\/p>\n<p>Dershowitz dismissed the idea that these cases would exert a material impact on Trump\u2019s candidacy.<\/p>\n<p>\u201cHe\u2019s not going to get prison. Nonetheless, he can run as a convicted defendant,\u201d Dershowitz said, referring to the 2024 election. \u201cHe can run from prison.\u201d<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>Former President Donald Trump currently faces four lawsuits and investigations with potential criminal liabilities. As the leading Republican presidential candidate for 2024, Trump has characterized these legal challenges as part of a political \u201cwitch hunt\u201d and attempts to hurt his candidacy. Across the aisle, Trump\u2019s critics describe the investigations as the proper application of the<\/p>\n","protected":false},"author":720,"featured_media":1906184,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","fifu_image_alt":"","footnotes":""},"categories":[543],"tags":[8247,4521,4431,3634,22318,22956,9075],"class_list":["post-1906183","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-the-epoch-times","tag-challenging","tag-experts","tag-legal","tag-trump","tag-untested","tag-vulnerabilities","tag-weigh"],"fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1906183","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/720"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1906183"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1906183\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/1906184"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1906183"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1906183"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1906183"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}