Donald Trump Indicted In Manhattan – The Legal Consequences

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Trump Indicted In Manhattan – The Legal Consequences; Prompt Dismissal By Judge, Or Juror Nullification At Trial

Donald Trump Indicted By A Grand Jury In Manhattan

WASHINGTON D.C. (March 30, 2023) – Former President Donald Trump has been indicted by a grand jury in Manhattan, notes public interest law professor John Banzhaf.

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From a strictly legal point of view, there are several possible consequences; some of which would upset those who wish to see Trump tried and possibly found guilty, including under the other three likely indictments on different and stronger grounds, says public interest law professor.

The other three are possible charges relate to the classified and other government documents found at Mar-o-Lago, Trump's role regarding the January 6th riot at the Capital, and Trump's documented (by telephone recordings) efforts to change the electoral vote in Georgia.

Now that 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 would argue that it based upon a faulty legal theory 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 especially that it becomes a felony simply because the purpose may have been to violate a federal (not state) campaign statute.

Second, Trump's lawyers would argue that the charges are barred by statutes of limitations; an argument complicated by the usual circumstances of the situation.

Third, and perhaps most importantly, his lawyers will seek a dismissal based upon the argument of prosecutorial misconduct, and especially selective prosecution.

In support they would 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.

Selective Prosecution

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 (e.g. 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 which 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 the other cases and situations are very different.

It would be a serious blow to DA Willis as well as federal special counsel Jack Smith if prospective jurors, as well as many other members of the general public, conclude from such a dismissal that all possible indictments of Trump are weak and/or the result of bias against him.

If a Manhattan indictment of Trump does survive a multi-prong 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 account.


Banzhaf notes that jurors have an established legal right [called jury or juror nullification] to refuse to convict, despite the strength of the evidence, if they believe that a prosecution isn't warranted under the circumstances, that the prosecutor is biased or otherwise acted unfairly, or that a conviction simply would not serve justice. As one report explained:

"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 prosecutions is among the most ancient and enduring features of our system."

So, now that Trump has finally been indicted, people should keep their eyes on the (legal) ball, and not on the (political) bluster, suggests the law professor.