Norman Eisen: Why Trump must face trial before the 2024 election

Donald Trump was without question a historic president — but in the worst ways possible.

He was the first president to attempt a literal coup against the United States government as well as the first president to be impeached twice. No current or former president had ever previously been indicted on criminal charges, but Trump can now claim that “accomplishment” not once but twice, with a third indictment apparently imminent for alleged crimes connected to the coup attempt of Jan. 6, 2021

Trump’s third indictment will likely not be the last. Prosecutors in Georgia are reportedly preparing more criminal charges against Trump for his attempt to rig or overturn the results of the 2020 presidential election in that state. 

Responsible Americans who believe in democracy, the rule of law and the constitutional order largely want Donald Trump to disappear and for the seemingly interminable “Trumpocene” era to end at last. That yearning, however understandable, will not be magically translated into a real-world outcome. 

Trump remains the likely 2024 Republican presidential nominee, and we must not underestimate his chances of defeating Joe Biden. There is no obvious constitutional or legal impediment to Trump winning the 2024 election even if he is a convicted criminal — even if he is in prison — and then pardoning himself. If Trump manages to retake the White House, he has publicly threatened to centralize presidential power as much as possible and make himself a de facto dictator.

In an attempt to make sense of Trump’s multiple criminal trials and impending indictments, his apparently pathological behavior, and the larger issues of justice, law and the future of democracy, I recently spoke with Norman Eisen, who served as special counsel to the House Judiciary Committee during Donald Trump’s first impeachment trial. 

Eisen is now a senior fellow in governance at the Brookings Institution and a legal analyst at CNN. He is the author of several recent and highly relevant books, including “A Case for the American People: The United States v. Donald J. Trump” and “Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy.” This interview has been edited for length and clarity.

Given all these developments in relatively rapid succession, with the recent and forthcoming indictments of Donald Trump for his alleged crimes against democracy, the rule of law and the American people, how do you feel? How are you managing your emotions? 

I feel gratified that the rule of law is finally catching up to the alleged wrongdoing of Donald Trump and his co-conspirators on and around Jan. 6, 2021, and indeed, the whole pattern of conduct that started immediately after the 2020 election. I also feel anxious, as we are now moving from the phase of anticipating accountability to that of litigating accountability. With two criminal trials currently on the books, I expect there will be charges and a date for a third and a fourth trial before the end of the summer. I believe and hope that our rule-of-law system will be up to the challenge. 

The news media continues to be reluctant to describe Trump’s obvious alleged coup plot, given all that we know about Jan. 6 and the nationwide attempt to end American democracy, as a conspiracy. This was not something in a movie or that happened in another country. It was a widespread, sophisticated conspiracy to end democracy in America. Donald Trump wants to be a dictator, and he’s unapologetic about it. Why is there reluctance by so many in the media, and among too many elites more generally, to use that language? 

We should be careful with our language here. This is an alleged conspiracy at this point. Whether there will be a legally actionable conspiracy will depend on how the courts respond to the charges that are soon to be filed, I believe, by special counsel Jack Smith and also by Fulton County District Attorney Fani Willis, both of whom appear to be targeting the Jan. 6 conspiracy.

I do think it is fair to say that some in the press have been more cautious with their language because they are waiting for prosecutors to file the conspiracy case. As of now, there’s only one criminal conspiracy case in connection with the 2020 election, and that is the one that Michigan Attorney General Dana Nessel brought last week against the alleged co-conspirators who signed fake electoral certificates in that state. I believe there is an unwarranted hesitation to describe Trump’s behavior on Jan. 6 and beyond, in relation to interfering with the 2020 election, as a type of conspiracy. The news media and others should simply use the qualifier “alleged,” but there is more than enough proof to make that claim. 

Where would we as a country be if Attorney General Merrick Garland and other law enforcement officials had moved faster in their investigations of Trump and his cabal? 

We would be in a better place if the speed had been brisker. But on the other hand, I do have to say that Merrick Garland inherited a Justice Department that was in disarray. Rightly or wrongly, he made a series of decisions, including the decision to not move with full determination on these issues, until he put his house in order. That took Garland about two years. There are news media reports that the Cassidy Hutchison testimony before the House Jan. 6 committee was the wake-up call for the Department of Justice. I do believe there was a strategy that involved rebuilding the DOJ before taking on these very controversial matters. I’ve known Merrick Garland for a very long time. He would likely never publicly discuss the timeline and decision making because he believes such considerations should be internal to department deliberations. 

How do we help the public to make sense of the timing of the Mar-a-Lago classified documents trial, which is now scheduled for May 2024 in Florida? What are the advantages and disadvantages of that timing? How could this play out? 

The most fundamental issue is how long it takes to try a case of this kind in fairness to the prosecution, the defense and the court. You should be able to do this in a year. I say that having tried cases for over 30 years and having worked on national security cases. I have also dealt with national security matters, both in my first government job for former President Obama in the White House counsel’s office and then as ambassador in the Czech Republic. 

There’s an additional fairness consideration, and that applies to the American people. They have a right to know, and the Republicans have a right to know, before they gather for their national convention in July 2024, whether Donald Trump, the leading candidate for the Republican nomination, is a convicted felon. 

There is also the fact that, should Trump win in 2024 and return to the presidency, he’ll have the power, at a minimum, to dismiss the case and perhaps try to pardon himself. I believe that Trump issuing himself a pardon is unconstitutional. But he may try, and who knows how it will turn out?

Ultimately, there are a wide variety of ways in which we might end up never knowing the outcome of these cases. There needs to be a trial and a jury verdict so that there is a determination of what alleged crimes Trump did or did not commit. That way, if Trump wins the election and pardons himself, the American people and the world will know that a jury of his peers concluded that he committed a crime. Finally, if he’s innocent, all the voters also have the right to know that before they make their voting decisions. All these facts strongly favor trying the case before July of next year. 

How do you make sense of Donald Trump’s apparent inability to remain quiet? He continues to incriminate himself. It must be maddening for his attorneys and other advisers. 

In my opinion, Donald Trump is not a well man. If you want to understand his psychology, you need to start by taking a book on abnormal psychology off the shelf and reading it. Whether he’s a pathological narcissist, a sociopath or, as some mental health experts claim, a psychopath, something is not right with his mind and behavior. I do not believe that whatever is wrong with Trump qualifies for an insanity defense. Trump knows the difference between right and wrong, but he does have a disorder of some kind as manifested by how he cannot stop talking even when it implicates him. 

That said, talking about these cases sometimes helps him. Trump is rallying his supporters, raising money and getting emotional support from his followers. Moreover, his constant talk about these cases also helps to taint the jury pool. Do not overlook or minimize that point: There will be Trump supporters in the jury pool when this case is tried in the Southern District of Florida and the Fort Pierce division. But those “advantages” can be outweighed by the way Trump’s talking all the time, as we saw with his CNN town hall in May, ends up seemingly incriminating him. 

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Trump recently received a target letter from the Department of Justice indicating that he will be indicted for alleged crimes connected to Jan. 6. In fact, he personally announced that he will be indicted and “arrested” imminently. 

Trump is going to be indicted and arraigned sooner rather than later. Technically he’ll be arrested, but in reality, it will be an arraignment similar to what we saw with the Mar-a-Lago classified documents case, except that it will be in the District of Columbia. The police are not going to put handcuffs on Trump, whatever he may tell his followers. Once you get a target letter, charges are usually not far behind. Typically, we would have seen Trump’s lawyers go to the DOJ and hold a meeting with officials there to try to talk them out of charging him. That hasn’t happened yet, as far as we know. I’d be looking for that signal, unless for some reason the meeting is not happening. 

Smith’s target letter reportedly cites statutes that were used during Reconstruction in an attempt to protect Black Americans from the Ku Klux Klan and other racial terror groups. What does that indicate about Jack Smith and the DOJ;s overall strategy and approach to Trump’s alleged crimes on and around Jan. 6?

We analyze this extensively in an article on Section 241 that can be read over at Just Security. What Smith is trying to do is to find the right statutes that are a tight fit for the misconduct. Trump’s alleged crimes proceeded in three stages. 

First, he flailed about for months to try to overturn the election by spreading disinformation — the so-called Big Lie — pressing his own Department of Justice to intervene, pressing the states to intervene and getting the would-be electors that were pledged to him to sign electoral certificates even though he did not win.  

Second, after everything else failed by Jan. 2, 2021, Trump used those fake electoral certificates to apply intense pressure to Vice President Mike Pence, demanding that he compel Congress not to recognize Biden as the winner of the election.  

The third act of Trump’s alleged criminal plot was the violence on Jan. 6. 

The statutes that are detailed in the target letter correspond to these three stages in the alleged plot. The first one is a scheme to defraud the United States through all of those wild plots, including the fake electors. The second is a plan to interfere with an official proceeding in Congress. The third is, when everything else failed, trying to interfere with the vote count in Congress through the violence of Jan. 6. This brings us to Section 241, the civil rights statute, because when you interfere with votes, that is a classic civil rights conspiracy. The statute exists just to stop such a thing from happening. It was passed during Reconstruction to protect the rights of African Americans from such conspiracies by the KKK and other Southern whites.  

Trump was trying to interfere with the counting of the votes of 81 million Americans who cast their ballots for Biden, as well as to interfere with the rights and privileges of Pence and the members of Congress in doing their jobs. 

Trump is facing multiple criminal trials for very serious alleged crimes. Odds are very strong that he will be convicted in at least one of those trials. What does justice look like then? What does our democracy need from this process? 

Justice looks like the investigations that have happened. Justice looks like the charges that have been brought so far against Trump, because there is such powerful evidence of wrongdoing. Justice also looks like the charges that are to come in the federal and Georgia investigations of the attempt to overthrow the 2020 election. Our country needs a resolution. We’ve made great progress in investigating and in charging or being on the cusp of charges. But now we need to have those cases resolved — and at least some of them have to be resolved before Trump is chosen, assuming that he is, to be the Republican Party’s presidential nominee, and a contender for the American people’s vote in November.