Former President Donald J. Trump and his advisers have scrambled to assemble a legal team for his first court appearance scheduled for Tuesday after being accused of mishandling classified documents and obstructing government efforts to recover -the bear.
But even when Mr. Trump figures out who will represent him, lawyers will face a bigger challenge: how to beat back charges in a criminal case in which their options may be limited.
Although no one knows exactly how Mr. Trump to attack the most serious charges he has faced, his options to use the legal system to delay the case, turn it into a political circus or paint himself as a victim of federal prosecutors are numerous. and varied
Even before his indictment, Mr. Trump, his allies and his lawyers had hinted at some of the arguments they might make.
They include claims that Mr Trump had the right to take documents from the White House and that he had declassified them before leaving office. They could accuse prosecutors of misconduct or try to show that he was the victim of selective prosecution. And they could seek to have potentially damning evidence excluded from the trial or try to force the government to reveal classified material it wants to keep secret.
But all these claims could be difficult to sustain in court.
Samuel Buell, a former federal prosecutor and law professor at Duke University, said it was generally difficult to get a federal indictment dismissed before it went to trial and that Mr. Trump and his lawyers would face to an uphill battle to keep the case from moving. come in.
“Your options here are extremely limited,” said Mr. Buell, “and very unlikely to prevent the case from going to a jury.”
The former president has long used lawyers as public relations aides, deploying them to make arguments that are often more suited to the campaign than the courtroom. But with the stakes immeasurably higher this time around, the challenge will be to strike a balance between doing his client’s bidding and complying with the rules of criminal procedure.
On Monday, Mr. Trump and his aides flew to Miami, where he owns a golf club, and stopped by to discuss possible new lawyers after James Trusty and John Rowley, the two who had been most actively representing him in deal with the special counsel. Jack Smith, resigned the day after charges were filed.
It was not yet clear whether any other lawyers would attend Tuesday’s appearance with Todd Blanche, who is now representing Mr. Trump in both the federal case in Florida and a separate case in Manhattan related to hush money payments to a porn star. .
Christopher M. Kise, an attorney on the larger team of Mr. Trump, who is licensed in Florida, and Lindsey Halligan, who is also licensed there and was in a meeting with Justice Department officials shortly before the indictment was returned, are also possibilities, a person close to his team said.
A wildcard is the handling of the arguments by Aileen M. Cannon, the federal judge in Florida who was assigned the case and who ruled in favor of Mr. Trump in an earlier phase of the investigation.
Still, the prosecution evidence itself is perhaps the most daunting problem facing any legal team dealing with Mr. trump
Over the weekend, one of Mr. Trump, Timothy Parlatore, and a man who served as his attorney general, William P. Barr, appeared on television bluntly stating that the 38-count indictment of Mr. Trump and one of his aides were extremely thorough and posed a serious threat to the former president.
Quoting a conservative legal expert writing for The National Review, Mr. Barr said that if even half of the charges were true, then Mr. Trump was “toast”.
“It’s a very detailed indictment, and it’s very, very damning,” Mr. Barr on “Fox News Sunday.”
Many of the tactics available for the defense of Mr. Trump has drawbacks.
For months, while the prosecutors of Mr. Smith investigated the case of documents, lawyers and assistants of Mr. Trump has insisted that the former president could take any document he wanted from the White House under the Presidential Records Act, a misrepresentation of the actual Watergate-era law. .
Mr Barr dismissed that argument on Fox, calling it “facially ridiculous”.
“They are government documents, they are official records,” said Mr. Barr. “They are not his personal records. Battle plans for an attack on another country or Defense Department documents about our capabilities are not in any universe Donald J. Trump’s personal documents.”
Mr Trump and his advisers have also repeatedly raised a separate contention: that he cannot be held responsible for having sensitive records on him at Mar-a-Lago, his private club and residence in Florida, or at other properties he owns, because he declassified everything before leaving office.
To the consternation of some of his lawyers, Trump has said at times that he could declassify records automatically, even with his mind.
But a recording of him cited in the indictment undermines that claim.
In the recording, you can hear Mr. Trump telling visitors at his golf club in Bedminster, NJ, that he wanted to show them a “highly confidential” military plan but couldn’t because it was “secret.” He then apparently admits that the document remained classified, undermining the idea that he declassified everything he had, and suggests the limits of his own powers to declassify records as a former president.
“Look, as president I could have declassified it,” he says. “I can’t now.”
Several legal experts said lawyers for Mr. Trump will likely file what is known as a selective impeachment motion and claim that Mr. Trump had been wrongly accused when other politicians facing investigation over their own handling of classified documents, notably Hillary Clinton, were not. .
Mr. Buell called any attempt to make such comparisons “a total loser,” noting that Mr. Trump involved a large number of classified documents and significant evidence of obstruction, none of which emerged in the investigation of Mrs. Clinton.
Even so, Mr. Buell said attorneys could file a class-action suit only “for public relations purposes.”
“The politics are such that they will probably make the motion,” he said.
Another motion that Mr. Trump’s lawyers could try — and that Mr. Buell said it would be difficult to win- is one that claims the grand jury process that led to the indictment was somehow marred by prosecutorial misconduct.
The legal team of Mr. Trump has already filed a sealed motion in Federal District Court in Washington, where the investigation began, requesting all grand jury transcripts to look for examples of prosecutors abusing the grand jury, according to a person familiar with the matter. matter .
However, that motion may have become moot after a Florida grand jury voted to indict. And, as said Mr. Buell, the normal remedy for grand jury misconduct is to discipline the attorneys involved, not to indict.
Two people familiar with Mr. Trump’s legal strategy said his lawyers may file a motion to suppress notes that lawyer M. Evan Corcoran made of his conversations with the former president to help him comply with a May 2022 federal subpoena demanding the return of all classified documents in his possession.
The notes, some of which Mr. Corcoran recorded on his iPhone and they show that Mr. Trump’s attempts to recuse himself from the subpoena led to some of the most damaging evidence contained in the indictment.
Rachel Barkow, a professor at New York University School of Law, said lawyers for Mr. Trump might have better luck with this motion than with any of the others. However, he cautioned that the ultimate success of the tactic would depend on the strength of the initial sealed decision by Judge Beryl A. Howell in Washington to leave the notes in the case through a provision known as the felony-fraud exception .
In a memorandum explaining why he waived the typical protections of attorney-client privilege and granted prosecutors access to the notes, Judge Howell said it was likely Mr. Trump tricked Mr. Corcoran on the steps he took to comply with the subpoena. He added that the government had made a “prima facie” showing that Mr. Trump had committed a crime, according to a person briefed on what he wrote.
Among the evidence Judge Howell considered in her ruling was a transcript of audio notes that Mr. Corcoran did so by describing the work he did last June to respond to the subpoena, a key period for investigators, according to the person briefed on what he wrote. The judge reviewed the notes privately before deciding whether to hand them over to prosecutors.
Mr. Trump fought unsuccessfully against Mr. Corcoran that he had to submit his notes or testify before a grand jury. Mr. Corcoran, who was not charged with any crime, argued against the release of a subset of the notes because they qualified as “opinion work product,” meaning his own impressions and related legal theories. with the case; prosecutors and the judge agreed.
Even if none of those attempts to derail the charges work, Ms. Barkow, they could still delay the case long enough to go to trial until after the election. And if Mr. Trump were to win, he could get his new attorney general to drop the matter or perhaps even pardon himself.
“I don’t think we’re going to have this case resolved before the election,” he said, “and so the election may end up resolving it.”
