Robbins: What if Trump were to be indicted? |

Robbins: What if Trump were to be indicted?

On Dec. 20, the House Select Committee on the January 6 Attack made four criminal referrals against former President Donald Trump. Like so much of Trump’s presidency and post-presidency, so doing was unprecedented. No other president (ex- or sitting) has ever had criminal charges against him referred to the Department of Justice by a congressional committee. 

The referrals were for Trump’s alleged obstruction of an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement and; inciting, assisting, or aiding and comforting an insurrection.

Despite, its sad, historical significance, what, exactly, does it mean?

In a word or two, not much.

Although the House committee, whose mandate expires with the new Congress on Jan. 3, has done diligent work that has opened the eyes of the nation to what led up to the Jan. 6, 2021, insurrection, what went on that day, and who was responsible for it, the end result is a paper tiger, to a great extent. Simply, the referrals are largely symbolic in nature and will not directly impact the Department of Justice’s own investigation into the ex-president.

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As you are probably aware, the DOJ has already launched a sprawling investigation into the attack on the Capitol and the efforts to overturn the 2020 election. It is with the DOJ where the power to criminally charge the ex-president actually lies. At best, the House Select Committee’s referral will simply serve to soften up the public for what follows.

For the DOJ to actually charge Trump would be extraordinary. No U.S. president, sitting or otherwise, has ever been charged with a crime. But from the time he glided down the golden escalator into political consciousness, with Trump, things have always been, well … different. It is perhaps worth noting, side-by-side with the observation in the first sentence of this paragraph, that neither has there ever previously been an orchestrated insurrection or attempted coup against the government. Not in this country anyway.

What, then, will happen if and when the DOJ issues an indictment?

Let’s first define what an indictment is. 

An indictment formally charges a person with a criminal offense. The indictment enables the government’s prosecution of a suspected criminal actor for the offenses charged in the indictment. During an indictment proceeding, a grand jury determines that there is an adequate basis for bringing criminal charges against a suspected criminal actor.

So let’s presume, as many do, that Trump will ultimately be indicted. What then?

Indictment would merely be the first step. It would be a prelude, in words that Trump himself is so fond of using, “the likes of which (this country) has never seen.” Where the trial would take place depends upon what charges may be brought. The likely venue would be Florida if he’s charged in connection with the Mar-a-Lago documents matter, or in Washington, D.C. if he’s charged for his involvement in the events of Jan. 6. In either event, the trial would take place in the appropriate Federal District Court.

If the trial is set in Washington, it would be conducted at the E. Barrett Prettyman Courthouse on Constitution Avenue, just a short walk from the Capitol. 

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial before a jury of one’s peers. The same would, of course, apply in the case of the United States v. Donald J. Trump.

Although Trump has a right to a speedy trial (also assured by the Sixth Amendment) — in this case, a trial within 70 days or less from indictment — most criminal defendants waive that right and drag out the process. This is a near guarantee with Trump. Not only is it to Trump’s political advantage to drag things out but, as a practical matter, considering the likely volume of evidence to be rereviewed by Trump’s defense attorneys, just slogging through the evidence will take months. It is a near certainty too that the defense will file various motions, which the judge could take months to consider. The best guess among legal minds is that the trial itself would likely be 12 to 24 months away, in other words, a period of time that would cover the entirety of the election year.

There are some who are convinced that a main — if not the whole — reason Trump announced his third campaign for president is in an attempt to shield him from DOJ prosecution. Will that work?

No, not so much.

What, however, if he’s tried and convicted? The likely scenario is that he would not be sentenced until months after his conviction and could potentially remain out of prison pending appeal. But a conviction or even imprisonment would not bar Trump from running for president. The Constitution sets the requirements for presidential candidates, and, strangely, a clean criminal history is not one of them. 

What if Trump won a second term despite having been convicted but remains unsentenced by the time the election is concluded? Conceivably, Trump could be inaugurated and assume control of the Oval Office. What then? While the imposition of a sentence of imprisonment could be levied against the sitting president, such ground having never been previously trodden, it is hard to know what would happen. 

There is little doubt, however, that the possibility would certainly raise constitutional issues that the Supreme Court would ultimately resolve. One would be naïve to neglect too, what Trump himself, if invested once again with presidential power, might try and do.

Equal justice under law is the hallmark of our system. The indictment and trial of Donald Trump would truly test that precept in new and novel ways and, in the words that once rang from the throats of the Woodstock generation, the whole world will be watching.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.

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