Are 'more serious' legal woes ahead for Trump? Experts say NYC case may be least of his worries

WASHINGTON – As former President Donald Trump awaits trial in New York on felony charges he falsified business records to pay hush money to women who said they had sex with him, legal experts contend he could face more serious charges from the Justice Department and in Georgia.

The easiest case to prove, legal experts say, might be the federal inquiry into more than 100 classified documents seized during an FBI search of Trump’s Mar-a-Lago estate. A conviction for retaining sensitive records could disqualify Trump, who is campaigning for the White House in 2024, from holding federal office again.

Justice Department special counsel Jack Smith is investigating the classified documents and Trump's role in the Capitol attack Jan. 6, 2021, a potentially unwieldy case. Because of the department’s traditional reluctance to interfere in political campaigns, legal experts grow more skeptical Attorney General Merrick Garland will approve a prosecution as the election nears.

Grand juries operate in secret, which makes it difficult to gauge their progress. But after New York District Attorney Alvin Bragg opened the door to the unprecedented indictment of a former president, legal experts expect Fulton County District Attorney Fani Willis to prosecute Trump on charges of election fraud.

“Both the Georgia case and the federal cases are more serious than the Manhattan case,” said Barbara McQuade, a former U.S. attorney and now a law professor at the University of Michigan. “In the Manhattan case, a sentence of imprisonment seems unlikely even if Trump is convicted because of the lenient sentences often imposed in white-collar-crime cases. The other crimes present the very real possibility of substantial prison time.”

DOJ probe focuses on classified documents found at Trump's Mar-a-Lago estate

Charges for Trump holding on to classified documents for more than a year after leaving office could become the most straightforward case to prosecute, legal experts say. Trump has argued he declassified the documents as he left office, but government officials have said they found no evidence for the claim.

“If you’re talking about cases that are absolutely clear-cut, bulletproof, ironclad, it’s the classified document case,” said Neama Rahmani, a former assistant U.S. attorney and co-founder of West Coast Trial Lawyers in Los Angeles. “Trump is told he can't have the documents. They're at his home. He reportedly lied to his lawyers about having the documents there. There’s no real way to defend that case on the merits.”

In contrast to the New York or Georgia inquiries, the federal statute calls for a person convicted of removing or concealing government records to “be disqualified from holding any office under the United States.”

More than a year after Trump left office, federal authorities retrieved more than 300 classified records from Mar-a-Lago. Federal authorities retrieved the documents in three batches: after exchanges of letters with the National Archives in January 2022, under subpoena in June 2022, and during an FBI search in August 2022.

One of Trump’s lawyers, Christina Bobb, signed a statement in June that all classified records had been returned – before more were found during the search. Bobb said Trump lawyer Evan Corcoran drafted the statement, and he has been ordered to turn over documents in the case.

More: Where does Trump stand in the prosecution process? Graphics show what happens next

More: Trump's relentless attacks on Mar-a-Lago search lack context. What he said vs. what we know.

One challenge in trying the case would be that classified documents also were found at the homes of President Joe Biden and former Vice President Mike Pence. But legal experts would highlight how Biden and Pence cooperated with the return of documents while Trump resisted.

Former Attorney General Bill Barr, who served in Trump's administration, said the former president played "games" with federal investigators seeking to retrieve the documents, which could amount to obstruction of justice.

"I think that's a serious potential case," Barr told ABC's "This Week." "I think they probably have some very good evidence there."

Garland, who would have to sign off on any prosecution of Trump, has said he would follow the inquiries wherever the facts and law lead.

But Rahmani said he was “less confident that Garland has the stomach for that type of prosecution."

Jan. 6 inquiry heats up as Pence set to testify. But will Trump be charged? That's up in the air.

Both prongs of Smith's federal inquiries appear to be heating up with subpoenas for Pence in the Jan. 6 investigation and Trump lawyers such as Evan Corcoran in the Mar-a-Lago case.

Trump fought both subpoenas. He wanted to keep communications confidential with his vice president under executive privilege and with his lawyers under attorney-client privilege.

What makes the Jan. 6 inquiry so significant is also what makes potential charges unwieldy.

The riot played out on national television as 140 police officers were injured and a mob rampaged through the Capitol, temporarily halting the count of Electoral College votes. More than 1,000 people have been charged, with hundreds convicted, including some for rarely charged seditious conspiracy.

“It doesn’t get more serious. It’s just short of treason,” said Kevin O'Brien, a former federal prosecutor now at Ford O’Brien Landy LLP. “But the case is massive. It’s diffuse. There are dozens of witnesses, many of whom I would imagine are not being particularly cooperative.”

The House impeached Trump and charged him with inciting the attack, but the Senate acquitted him. A House investigative committee called Trump the “central cause” of the riot. A criminal conviction for insurrection could arguably block Trump from holding federal office again, under the Constitution’s 14th Amendment.

More: House Jan. 6 panel recommends DOJ prosecute Trump on several charges. Which ones and why?

Sprawling evidence covers attempts to decertify electoral votes in several states, trying to use the Justice Department in that effort and pressuring Pence to participate – and then linking those efforts to the violence at the Capitol on Jan. 6. Investigators might not bring charges because of the complexity of a case, legal experts said.

“They have to build a case brick by brick and try to link all these parts together,” O’Brien said. “Those are all very complex individually. They have to be weaved together in a coherent way to make the story clear and vivid to a juror.”

Convicting Trump of inciting the attack because of baseless claims of election fraud and his rally near the White House could be difficult because it would require proving he knew he lost the election and intended to incite the violence, legal experts said. Trump has argued urging the crowd to "fight like hell" for the country was standard political rhetoric.

“I am less convinced that Jack Smith is going to recommend charges for seditious conspiracy or insurrection," said Claire Finkelstein, a law professor at the University of Pennsylvania and faculty director of Center for Ethics and the Rule of Law. "It turns on psychological factors like Trump’s mental state, so it’s more challenging to bring that."

Georgia inquiry focuses on Trump's efforts to change election results

In Georgia, Willis is investigating possible election fraud and conspiracy charges stemming from Trump's strategy to overturn the state's election results in 2020.

Trump’s campaign also recruited 16 fake electors for Pence to recognize as Senate president while counting Electoral College votes. Trump also called state Secretary of State Brad Raffensperger and asked him to “find” enough votes to flip the results from Biden to him.

Raffensperger explained during the recorded call Jan. 2, 2021, there was no widespread fraud in the state. Pence refused to cooperate with the fake elector scheme during the vote count Jan. 6, which drew the ire of Trump supporters.

Trump has described the call as “perfect."

More: Trump, Russia, Biden: The US has 3 special counsel investigations at once. What are they?

McQuade described the call as “strong evidence of election fraud” but said it wouldn’t be enough to make the case. Willis may pursue the electors angle in addition to or instead of the call, McQuade said.

“Prosecutors would need to show that Trump knew he had lost in Georgia and was attempted to defraud the voters by ‘finding' additional votes for him,” McQuade said. “He may claim that he was simply requesting credit for votes he claimed he had received. Evidence about other conversations between Trump or members of his campaign and Georgia officials could provide the additional evidence.”

DOJ traditionally avoids charging close to an election; Trump already campaigning for president

Legal experts said that if any charges are brought against Trump, it should happen soon, before the thick of the presidential campaign. Each of the inquiries deals with events years ago, raising questions about delays seeking charges.

“You need to be prepared to try the case, and that’s going to be the most politically charged trial in American history," Rahmani said.

The New York case deals with hush payments nearly seven years ago – before two intervening presidential elections.

The Georgia investigation deals with events more than two years ago. A special grand jury completed its work in December and released a report recommending multiple indictments in February. Then nothing.

“The question there is, 'What are the authorities in Fulton County doing?'” O’Brien said. “They’ve had plenty of time to do legal research, strategize and draft an indictment if they were so inclined to do that. But maybe they’re not.”

Finkelstein said a federal indictment in the documents case could have educated the public about charging Trump before he declared his candidacy for president and before local charges were filed in New York and Georgia.

Bragg said his office received more than 1,000 calls and emails from Trump supporters since the indictment was unsealed March 30, including death threats and a package containing a suspicious white power.

“In the minds of many of us, there were very, very long delays here,” Finkelstein said of the federal documents inquiry. “If that had been anyone else, there would have been an immediate charging decision or arrest in that case.”

The clock is ticking. The Justice Department traditionally has a policy not to charge anyone too close to an election, which is generally understood to be within 90 days.

“We haven’t run into that time period yet,” Finkelstein said. “But they have to do it soon.”

While any charges against a former president are unprecedented, it would be even more provocative to hold a trial in the middle of a campaign. A conviction for insurrection or retaining restricted documents could bar Trump from the White House, but not lesser federal or local charges.

“It’s messy,” O’Brien said. “Let’s say he’s charged and, in the middle of a presidential election, he’s convicted. What happens then? There’s nothing in the Constitution that prevents him from serving if he wins. It’s just a mess. It’s a huge distraction in the middle of a very consequential election.”

This article originally appeared on USA TODAY: Trump indictment may pale in comparison to other grave legal troubles