The Three Biggest Obstacles to Convicting Trump
Donald Trump has been indicted on 37 felony counts related to his theft of classified documents and his obstruction of the investigation into that security breach. Now comes the hard part: trying the case.
Prosecutors often talk of the “cruel dilemma” they face: If they secure the conviction of a charged defendant, they are “just doing their job” and merit no substantial credit; if they indict and fail to secure that conviction, they have somehow messed up.
To a large degree, this description is accurate. In a run-of-the-mill criminal case, notwithstanding the formal presumption of innocence, the prosecutor comes into the trial with a host of procedural and substantive advantages. In these routine cases, to lose is truly to err.
Not so with the case against Trump. Though the special counsel, Jack Smith, begins the proceedings with some significant pluses, he faces a much tougher road than prosecutors typically do. There is a more-than-reasonable possibility that Trump will never be convicted of the crimes with which he has been charged.
Smith’s most notable advantage is the factual strength of his case. In his speaking indictment (or, as Norm Eisen of the Brookings Institution called it, ), Smith laid out the case against Trump in stark detail. To take but one example, the criminalizes the “willful retention” of national-defense information. In a recording of
