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(Photo by Win McNamee/Getty Images)
Everyone’s talking about the indictment handed down against Donald Trump for his various conspiracies to hang on to power after he lost the 2020 election.
We don’t yet know when the January 6 case will be tried. But please remember this: The January 6 indictment pleads a bunch of different conspiracies and suggests that the evidence will come from many different witnesses. Trump, of course, will have the right to put on witnesses of his own. I’m just spit-balling here, but it wouldn’t surprise me if the trial lasts for three months.
Think now about timing. If, as some have speculated, the case is set for the trial to start in mid-March 2024, then the trial might not end until mid-June. You wouldn’t know the verdict until the Republican primary season was over, and the identity of the Republican nominee was already known.
Or perhaps the judge will decide that the Trump team needs more time to prepare its defense. Perhaps the judge will set the case for trial to start in mid-July. If so, then the trial might not end until mid-October. The verdict would be one heck of an October surprise.
I hope (but certainly don’t know) that the case won’t be set for trial later than that. The public ought to know, before it votes in 2024, whether Trump feloniously tried to hold onto power after the 2020 election. But we will see.
The trial may or may not be televised. Trials in federal court generally are not televised, but some folks are saying that Chief Justice John Roberts and the Judicial Conference of the United States, which has authority over these things, ought to make an exception to allow this one trial to be televised. Others have suggested that Congress should pass a law that permits, or requires, this one trial to be televised. I suspect that’s a pipe dream. No one should reasonably expect this Congress to be able to pass a law. Yet others have speculated that Trump and the Department of Justice will both agree that the trial should be televised, which would increase the likelihood of you getting to watch the spectacle live. That would be great.
I can tell you right now what the result of the trial will be: Either Trump will be found guilty or the jury will hang (that is, will not reach a unanimous verdict). Folks who live in the District of Columbia skew overwhelmingly Democratic, so they’ll be willing to listen to what the prosecutors have to say. The evidence against Trump, as set forth in the indictment, is overwhelming. There’s also a ton of evidence that the prosecutor has not pleaded in the indictment, but that we know (from the January 6 Committee hearing) exists, such as White House Counsel Pat Cipollone telling Trump that it would be a “murder-suicide pact” if Trump appointed Jeffrey Clark as attorney general. It’s inconceivable — as in a zero percent chance — that the jury will unanimously find Trump not guilty. It’s entirely possible that the jury will find Trump guilty. And it’s always possible that one or two die-hard Trump loyalists will make their way onto the jury and refuse to vote to convict no matter the evidence. If that happens, the jury will hang.
That covers everything up to the day of the verdict.
What about the day after the verdict?
Most of the key witnesses at the trial are going to be Republicans. It’s obvious from the indictment, for example, that Mike Pence and Mark Meadows — Republicans to the core and long-time Trump loyalists — will be witnesses for the prosecution.
So Pence is going to testify against Trump. Some of the evidence that Pence gives will be devastating, such as when he confirms that Trump told him, during a January 1 phone call, that Pence was “too honest.” (Pence has already started selling T-shirts and hats proclaiming, “Mike Pence. Too honest.” If I were a Democrat and thought that Pence had a chance of winning the nomination, I’d start selling T-shirts that said, “Mike Pence. Too late.” But Pence won’t win the nomination, so there’s another great idea down the tubes.)
Anyway, Trump himself is presumably the only other witness to the January 1 phone call between Trump and Pence. Trump will bluster about how he’d love to take the witness stand to defend himself and explain that Pence is a liar, but Trump ultimately will not take the witness stand. Trump’s an inveterate liar, and his lawyers will never let him take the witness stand, and Trump would be crucified on cross-examination if he actually took the stand, so he won’t. Period. We can end that discussion right now.
Pence’s incriminating testimony — that Trump thought Pence was too honest, among other things — will thus come into evidence unrebutted. Given that Pence will be crapping all over Trump during Pence’s direct examination, what do you suppose that Trump’s lawyer will do during cross-examination?
There’s no need to speculate: Trump’s lawyer will try to disembowel Pence on the witness stand. I suspect that Pence won’t break down and cry during cross-examination, but he’s going to emerge an angry man after that day on the witness stand being challenged and disparaged.
After spending hours on the witness stand with Trump’s lawyer trying to prove that Pence is a liar, is Pence really going to continue to support Trump in the election? Pence could say, for example, “I’m a Republican, and I support the Republican nominee for President.” But I doubt that he’ll say that. By the time the case is tried (and especially if the trial is televised), Pence’s political career will be over. He will not be the Republican nominee, and he’ll be ruined for the future. There would be no reason for Pence to continue to be a gutless milksop, continuing to support Trump for political reasons.
At a minimum, I suspect, Pence will become an outspoken opponent of Trump’s. (You’ve already seen an inkling of this since the indictment and the “too honest” quote were made public. Pence has started to challenge Trump a little more forcefully. Pence’s hand has been forced; once Pence’s evidence was disclosed in the indictment, it became obvious that no Trump loyalist would ever support Pence. Things will get even worse after the cross-examination at trial.) Pence may only have a few percent support in the Republican primaries, but I suspect his strident opposition to Trump will convince a number of long-time Republican voters not to “come home” to the Republican Party by supporting Trump in the general election.
In fact, Pence may agree to do something more dramatic to oppose Trump — such as stumping for Joe Biden, or making campaign commercials for the Democrats. After all, Pence’s political career will be over within the next year, but his life will not. He could earn a ton of money by writing another book, or becoming a pundit, or making himself a (Democratic) national hero by speaking the truth loudly. What better way for Pence to make a name for himself than by suddenly realizing that Trump is unfit for office and vigorously campaigning against him?
Other prominent Republican witnesses against Trump at trial may well come to this same realization on the witness stand: Their careers in the current Republican Party are over; they may as well launch new careers in a different direction after the trial.
The day of the verdict in the January 6 trial will be fascinating.
But stay tuned for the day after the verdict. That will be a thriller, too.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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