Let me state at the outset: With regard to the numerous investigations pending against Donald Trump, I claim no expertise as to criminal law. If you want an in-depth analysis of the law pertaining to these charges, read the columns of Joe Hayden, one of the top lawyers in New Jersey who has authored columns for Insider NJ. You won’t find a more incisive analyst in this regard than Joe Hayden.
I can, however, analyze the political impact on the Trump campaign of indictments emerging from these allegations. The media is presently focused on the investigation by Manhattan District Attorney Alvin Bragg regarding allegations of false record keeping by Donald Trump and the Trump Organization. While these allegations are serious, they can be misleadingly spun by Trump and his acolytes as trivial and biased. In fact, any indictment on these charges may result in a temporary increase in donations to the Trump campaign, something the Trump campaign desperately needs.
Thus far, Trump campaign fundraising has been substantially lower than in previous campaigns. This has been true both at the grassroots “low dollar” level and among the GOP’s prominent money people, who are mostly signing on with Trump’s chief rival for the nomination, Florida Governor Ron DeSantis.
This past week, an event occurred which is a huge boost to the credibility of DeSantis. Jeff Roe, the top GOP strategist in the nation has joined Never Back Down PAC, a super PAC launched this month by Ken Cuccinelli, a Trump administration official who has defected for the 2024 race and is playing a major role in laying the groundwork for DeSantis’s widely expected White House bid.
Do not be misled by the recent decline in the DeSantis poll numbers or his recent press fumbles. He is ideally positioned where he should be if Trump becomes nonviable. In a nutshell, his cultural warrior stance makes him totally acceptable to MAGA if Trump is no longer an option. And the typical MAGA voter could care less as to how smooth is the DeSantis performance on national talk shows.
At this stage of the campaign, polling is largely irrelevant, as the contrast and messages of the candidates have not yet been clearly set forth in front of the national electorate. The major tasks for a challenger candidate like DeSantis are 1) the recruitment of staff; and 2) the establishment of a fundraising apparatus. And DeSantis is performing both tasks most effectively.
The worst for Trump, however, may be coming very soon. Special Prosecutor Jack Smith appears to be closing in on an obstruction of justice indictment against Trump related to the Mar-a-Lago document concealment allegations.
Unlike the Manhattan business record allegations, obstruction of justice is unequivocally a crime of moral turpitude. That is especially true when there is an apparent connection between the obstruction and national security concerns, as is the case in the Mar-a-Lago allegations. There is no way that Trump or his acolytes could spin an indictment on these charges to their benefit.
An obstruction of justice indictment against Trump would be conclusive evidence in the court of public opinion of his mendacity and lack of patriotism. His electability would be irrevocably damaged, even before trial, due to the absolute evisceration of his support from independent voters. An unelectable Trump is a nonviable candidate.
Consequently, Trump’s fundraising capacity would also be destroyed. Major donors view their donations as an investment. At the very least, they hope to have access to their candidate after he or she is elected. Without electability, the investment becomes worthless.
Yet that is not all that Donald Trump has to fear from Jack Smith. If you are a criminal, Jack Smith is the last person you want to prosecute the case against you. His reputation for effective aggressiveness as a prosecutor is well earned.
In the words of the former Justice Department attorney Andrew Weissman, who served on the staff of former Special Counsel Robert Mueller, “I was described by Steve Bannon (and, sigh, many others) as a pit bull. Jack Smith makes me look like a golden retriever puppy.”
Jack Smith is also investigating the January 6 and stolen election (the fake electors and Big Lie) allegations against Trump. My hunch is that he has opted to proceed first on the Mar-a-Lago obstruction of justice charge based on it being, relatively speaking, low hanging fruit.
Regardless of the outcome of these other matters, the Mar-a-Lago obstruction of justice indictment, even before trial, will render nonviable the Trump campaign for his return to the White House. Prediction: By January 1, 2024, Donald Trump will no longer be a candidate for the Republican presidential nomination.
Alan J. Steinberg served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.