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The 2024 presidential election may become the Courtroom Trial Election as former President Donald Trump splits his time between rallies and the defendant’s table.
During a Nov. 7 United Facts of America panel, PolitiFact explored the facts behind the trials Trump faces. Our guests were Palm Beach County State Attorney Dave Aronberg and Jon Sale, a white-collar criminal defense attorney in Miami. Sale is a former Watergate special prosecutor and a former lawyer for Rudy Giuliani.
PolitiFact has fact-checked numerous false and misleading statements related to the 91 criminal charges against Trump.
The charges against Trump have drawn opposing reactions from die-hard partisan voters, including liberals who want to see Trump in a jail jumpsuit and Trump loyalists who dismiss the cases as much ado about nothing.
"I think both sides need to lower their expectations a little bit," said Aronberg, a Democrat. As far as the idea of Trump going to jail "there is a possibility. But I think the only criminal case that will be decided before the election will be the Washington, D.C., election interference case."
Here’s a look at some of our experts’ key points in the Trump cases.
Trump testified Nov. 6 in the New York civil fraud trial in which he’s accused of creating false valuations of his properties, including Mar-a-Lago in Palm Beach, Florida. In court, Trump’s outbursts and proclamations drew eye rolls and scoldings from the judge.
Aronberg said Trump’s testimony is not a harbinger for the criminal cases, predicting he won’t testify in those trials.
"He could be walking into a perjury trap and he's not under a requirement to testify. But in a civil case, if he took the Fifth Amendment, it would be used as an adverse inference against him," Aronberg said.
Sale said that in the courtroom Trump made admissions that could be used against him.
"But in the political arena, to his audience, this was a big victory for him," Sale said. "And I'll bet you when you look at the fundraising statistics, when they come out, I think you're going to see that this performance of his was a grand slam home run."
Trump has falsely said that he was charged for trying to challenge an election’s outcome. One of his other common defenses is that the cases amount to "election interference" as he faces a possible rematch against President Joe Biden.
"It’s easy for him to say that on the campaign trail," Sale said. But to make a motion alleging prosecutorial misconduct would require "an evidentiary hearing and real proof of that, which they're not going to have. So in the courtroom, none of this is going to be allowed."
Aronberg said that for people who think the cases signal a weaponized Justice Department, "Hunter Biden would like to have a word."
U.S. Attorney General Merrick Garland named David Weiss as a special prosecutor, a Trump administration holdover, to investigate Biden’s son Hunter.
But Aronberg said it is "legitimate to criticize a slow process at the beginning" by prosecutors.
PolitiFact has found no evidence that Special Counsel Jack Smith intentionally timed the charges to hamper Trump’s campaign as Trump alleged. Complex federal cases routinely take years to investigate before they reach the indictment stage.
And Trump announced his campaign in November 2022 — about two years before Election Day 2024.
"It was Donald Trump who decided to announce for president extra early, earlier than any other candidate because he wanted to intimidate Merrick Garland, because he wanted to make this argument that he was being persecuted because he was running for president," Aronberg said.
When there is a gag order, usually judges gag only the lawyers because the lawyers’ clients tend to "keep their mouth shut," Sale said.
In the fraud civil trial underway in New York, Judge Arthur Engoron issued a gag order barring Trump from discussing communications with the judge’s staff. A federal appeals court earlier this month temporarily paused a separate gag order on Trump in the criminal 2020 election interference case.
However, Trump as a presidential candidate "has the highest degree of protection under the First Amendment for free political speech."
The gag order in the federal case is "too broad," said Sale, because Trump should be allowed to respond to witnesses, including former Trump administration Attorney General Bill Barr, who have gone on TV to criticize Trump.
The Trump trials will dominate the election news coverage, offer plenty of fodder for comics and keep fact-checkers busy beyond Election Day in November 2024. But they are not cause for celebration, said Sale.
"I couldn't tell you how much I disagree with that," Sale said. The fact that a former president was indicted ultimately "four times is not a great day for America. I think it's a very sad and solemn day for America."
Sale said that "Trump, like everyone else, is entitled to a fair trial, where he's presumed innocent, and he should be convicted or acquitted based upon getting a fair trial for our fair, unbiased jury."
James Comey, Tweet, March 30, 2023
PolitiFact’s youtube channel, November 2023