Now that Manhattan DA Alvin Bragg has obtained an indictment, almost certainly the first step will be for Trump’s lawyers to file a motion to dismiss the indictment on several different legal grounds.
- First, they will argue that it is based upon a faulty legal theory. Bragg is arguing that a mere misrepresentation on a government document (i.e., recording a payment of hush money as a legal expense) is by itself criminal, and that it becomes a felony simply because the purpose may have been to violate a federal (not state) campaign statute. Trump’s lawyers will argue that’s a stretch.
- Second, Trump’s lawyers will argue that the charges are barred by statutes of limitations.
- Third, and perhaps most important, his lawyers will seek a dismissal based upon the argument of prosecutorial misconduct, and especially selective prosecution.
In support, they will point to the undisputed facts that several prosecutors (including Bragg himself once) who had reviewed the case declined to prosecute, and that there is no logical reason (e.g., newly discovered evidence) to suddenly reinvigorate what has been called a “zombie” case now years after the facts became known.
Trump can also make a strong case for selective prosecution (or selective enforcement), which occurs when prosecutors single out one person for charges when they generally choose not to charge other people who committed similar offenses.
His lawyers will argue that simple document-misrepresentation cases are usually handled without bringing a criminal prosecution (usually as a civil matter), and that “bootstrapping” a misrepresentation as an election-law felony has never before even been tried, much less approved.
Surely the judge will be asked to consider this question: Would this case have been brought against anyone else, even another politician?
If the indictment is dismissed on any one or more of these grounds — something that could happen quickly, and even before any of the other indictments are made public — it will strengthen the hand of those who argue that Trump is being persecuted, even though other cases and situations related to Jan. 6 and the election are very different.
If a Manhattan indictment of Trump does survive a multipronged motion to dismiss and goes to trial, the same assertions about prosecutorial misconduct and selective prosecution may well persuade at least one juror to vote “no” even if he believes that Trump is guilty beyond a reasonable doubt.
There are serious questions about the propriety of pursuing any of these cases, and seeking to convict a former president for marginal conduct may strike some potential jurors (even ones who dislike Trump personally) as a bridge too far.
All it takes is one juror to say — as they have every right to do — “You know what? He may be guilty as hell, but I simply can’t go along with this.”
If you think the chances of such a person ending up on a Trump jury are zero just because the trial’s in Manhattan — or for any other reason — then you’ve never picked a jury and you’ve never tried a case.
Moreover, the use of so-called jury nullification to protect criminal defendants from politically motivated prosecution is among the most ancient and enduring features of our system.
John F. Banzhaf III is a professor of public interest law emeritus at George Washington University Law School.