To charge or not to charge

I have had this debate with every lawyer I respect over the past few years: Do you charge Trump with a weaker insurrection case because that’s the only thing that will legally prevent him from running for office again, or do you stick to the stronger obstruction case that still allows him to run for office from prison even if you get a conviction?

[...]

Smith went with the stronger case, and since I’ve already been wrong about Smith once (when he was initially appointed, I thought he’d be another Robert Mueller type who was more interested in covering his ass than defending the country), I am not inclined to second-guess him again. Even though we all saw Trump engage in rebellion on January 6, proving that his intention was rebellion is more difficult than proving his intent to obstruct the electoral process. I do not think that Smith’s decision to drop the insurrection charge was politically motivated; I think it was legally motivated. He’s got Trump, dead to rights, on obstruction; he doesn’t have him on insurrection. Smith is working with the laws and the evidence he has. If he could make a rock-solid case for sedition, I think he would have charged it. He couldn’t, so he didn’t.

  Elie Mystal @ The Nation

Can we please now put this insurrection charge to rest?  It was a wise decision on Smith's part.  Let it be.

But [...] Trump will have some fair arguments for delay. First of all, as everybody knows, this is not the only indictment Trump is facing: he’s being charged in D.C. over January 6; he’s being charged in Florida over his mishandling of classified documents; he’s being charged at the state level in New York over his false business practices; and in the coming weeks, he’ll likely be charged in Georgia for trying to tamper with the elections process. That’s… a lot of cases for one criminal defendant, and there are no hard and fast rules for the order in which those cases should run. The prosecutors will huddle and present a plan to each of the judges presiding over the trials, but Trump’s defense lawyers will propose a plan too, and the judges will have to work it out. That alone could cause a delay in getting any one of the trials off the ground.

Moreover, Trump can legitimately argue that he needs a lot of time to prepare a defense to any of these charges, especially the federal ones that could put him in jail for the rest of his life. And then there are the illegitimate arguments: With January 6 in particular, Trump’s team will file massive discovery requests as they argue that “proof” of voter fraud and election interference is key to their defense to these charges. There is no proof, because Trump did not win the election, but who knows how many people Trump will try to subpoena and depose. And if anybody balks at what will be a trash and unwarranted subpoena, that could also cause delay. Indeed, every single pretrial motion that Chutkan denies will likely trigger an appeal to a higher court, many up to the Supreme Court, and if any one of those appeals is even in the ballpark of reasonable, we can expect conservative appellate judges to help Trump out by taking their time to rule.

[...]

To go from charges to conviction before the November election, Smith has to essentially run the table and win against all the tactics for delay. Any loss, any decision by the Supreme Court to hear any of these issues on the merits before the trial has concluded likely punts the trial until after the election.

[...]

You see, even if the trial somehow comes off before the next election, and Trump is convicted in that trial, that is not the end of the due process Trump is entitled to. First there will be a sentencing hearing, and those also take a lot of time. The defense will strenuously argue that a 77-year-old “first-time offender” (God, I hate writing that) does not deserve to be thrown in jail. Then there’s the post-conviction appeals process. If Trump were a regular defendant, I’d tell you that he’ll be filing his appeals from a prison cell, but he’s not. Even after a conviction and sentencing, Trump will run to the Supreme Court, asking for an emergency stay of his jail sentence while his appeal and campaign to return to office plays out.

Yeah, I don't believe he'll ever go to jail.

Should the Supreme Court grant such clemency to Trump? No. Do they do so for other people convicted of crimes? Absolutely not. Will they do so for Trump? I don’t know, folks—what do you think the six Republican-appointed justices on the Supreme Court will say when the Republican nominee for president argues that he should not be jailed a few weeks before a presidential election, when he is actively in the process of appealing that conviction?

I think we know.

...but hey, do what you want...you will anyway.