Dear Reader,

The Justice Department’s indictment of Donald Trump for willful retention of defense information and obstruction of justice is timely, serious, detailed, and firmly grounded in specific evidence. The Manhattan District Attorney’s indictment of Trump, for falsifying business records of a hush money payment to a porn star, is none of those things

This is the inadvertent genius of Trump. He commits so many wrongs – some criminal, some unethical, others simply boorish – that the grievous bad acts tend to overwhelm the lesser ones. And now, it’s an unavoidable reality that the new federal charges against Trump underscore just how trivial and ill-conceived are the state-level charges pending against him in Manhattan.

The problem here is that Manhattan DA Alvin Bragg (a friend and former colleague of mine) got there first, and his trial now occupies prime real estate on the all-important calendar – perhaps to the exclusion of any other potential pre-election trial. But, with some reasonable negotiation and accommodation, the damage can be mitigated.

Let’s run through the differences between the two indictments, starting with the alleged conduct. A strange semantic debate emerged earlier this year over the Manhattan DA’s case: was Trump’s charged conduct – falsifying internal paperwork about payments relating to sex – serious? The debate became an unsatisfying exercise in circularity, so let’s settle on this: as all of human conduct goes, sure, doing something that breaks the law is “serious.” But within the universe of criminal conduct, no, conduct that’s either a misdemeanor or the lowest-level felony – legally on the same plane as shoplifting offenses under New York law, likely punishable by probation – is not “serious.” There is no such debate, of course, about the DOJ charges. The former president wrongly took, retained, and at times disclosed the most sensitive government information about nuclear programs, military plans, and our security vulnerabilities – and then lied to and hid evidence from his lawyers, the Justice Department, and the grand jury. Nobody can rightly shrug off that conduct.

The indictment by DOJ Special Counsel Jack Smith is a model of prosecutorial practice. It spins a vivid and compelling narrative, plainly and clearly. (It’s actually good reading, if you take it out of the legal framework.) The federal indictment details specific factual allegations, each backed up by reference to a particular piece of evidence: text messages, emails, audio recordings, handwritten notes, photographs. The Manhattan DA’s indictment, by contrast, tells us precious little. It’s a barebones charging instrument that essentially states the name of the crime charged and the dates on which each alleged violation occurred. There’s an accompanying statement of facts, which provides more detail, though little in the way of specific corroborating evidence. The DA’s documents, taken together, leave much in doubt. For example, the charged falsification crime becomes a felony (as opposed to a lowly misdemeanor) only if it was committed in furtherance of some other crime – yet the indictment fails to identify what that other crime is.

And then there’s the issue of timing. Jack Smith took over as special counsel in November 2022. He had a head start – DOJ already had been investigating Trump for classified documents since early that year – and he got the case charged and taken down in about seven months. (Keep this in mind, by the way, as some continue to defend Attorney General Merrick Garland and Fulton County District Attorney Fani Willis for rounding the corner on three years between January 6 and their still-pending cases.) Bragg’s charge, by contrast, landed nearly seven years after the actual hush money payments at issue. True, Trump couldn’t have been charged while he was president. But another two-and-a-half years lapsed after Trump left office; during that time, both the Southern District of New York and Bragg’s predecessor as DA declined to bring charges. (Don’t buy the set-piece defenses that the DA’s office was told to “stand down” by the SDNY, or that it had to go to the Supreme Court to get Trump’s tax returns; these things are true, but realistically account only for temporary delay or diversion of limited resources.)

The Manhattan DA’s case is set for trial starting in late March 2024, running into and possibly through April. (The federal case was originally set for August 2023 but that was merely a placeholder. DOJ then requested a December 2023 trial date, but that too will likely be bumped back.) The Manhattan DA’s trial thereby occupies a Goldilocks zone of sorts: far enough out to allow for discovery, pre-trial motions, and adequate trial prep time, but not so late that it bumps up against the November 2024 presidential election. Smith and his team of federal prosecutors therefore might be out of luck if they hope to try Trump before the election. They can’t realistically try their case before the Manhattan DA; they’d have to start a trial in January 2024 or so, and that’s exceedingly unlikely, especially given the numerous and fairly complex pre-trial motions that Trump surely will raise. And if DOJ wants to hold its trial after the Manhattan DA, they’re realistically looking at a start date in July 2024, running through August. (You can’t just stack these trials immediately back-to-back; the parties would have to build in at least some cushion to allow Trump and his team to reasonably prepare their defense.) As I’ve written before, I doubt a federal judge would countenance a late-summer trial, so close to the election – especially coming on the heels of another trial that occupied much of the spring – nor would such a trial be in keeping with the spirit of DOJ’s longstanding policy against taking steps that might influence an election, too close to that election.

But there’s a solution to be had here. Smith and DOJ could essentially ask Bragg to stand down – to vacate his sweet-spot trial position in March and April, and give it up to the feds. This wouldn’t be a simple process, but it might work. You’d first need Bragg to agree; he might, if it was in the greater good (and, perhaps, if he might want to let somebody else with stronger charges take the first crack). If Bragg was on board, he’d then have to go to the state judge, Judge Juan Merchan, and ask him to postpone the trial; the Judge might grant the motion, given the higher priority and stakes of the federal case. And Trump would have a say, too. He might object to postponing his state trial, reasoning that he’d have a better chance to prevail in the hush money case than in the federal case (and, keep in mind, the defendant is the one who holds the right to a speedy trial). Or perhaps Trump would consent to adjourning his state case, reasoning that he’d have a better chance with a federal jury drawn from red-state Florida than a state jury pulled from deep-blue Manhattan. 

Reasonable people can disagree about whether the Manhattan DA should have charged Trump first, or at all. But it’s plain that the DA’s hush money case pales in comparison to the new federal case. At this point, Bragg’s indictment is creating an impediment to the best interests of justice and our political process. He should get out of the way and let the feds go first.

Stay Informed,
Elie

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