Ex-federal prosecutor cites '2 important audiences' for Trump’s legal problems

04 October 2024

With the presidential election less than five weeks away, the United States is facing something that is unprecedented in its 248-year history: the possibility of electing a candidate who is facing both state and federal criminal charges.

Justice Juan Merchan, after the election, will sentence GOP nominee Donald Trump on 34 criminal counts in Manhattan District Attorney Alvin Bragg Jr.'s hush money/falsified business records case. And special counsel Jack Smith, in a legal brief unsealed by Judge Tanya Chutkan in early October, lays out a detailed, in-depth, 165-page argument for proceeding with his election interference case against the former president. How Chutkan will rule in response to Smith's filing remains to be seen.

In an op-ed published by the Daily Beast on October 3, former federal prosecutor Shan Wu examines the effect that Trump's legal problems could have on the 2024 election's outcome. National and battleground state polls continue to show a very tight race, with Trump slightly ahead in some of them and Democratic nominee Kamala Harris slightly ahead in others.

"With one 165-page filing, special counsel Jack Smith may have put the 'surprise' back into the overused political term 'October surprise,'" Wu argues. "The modern political use of the term — the first 20th Century use was about fall sales in department stores — arose with former President Reagan's campaign staff fearing that President Jimmy Carter might arrange an Iranian hostage release deal that might have turned the 1980 election into a Carter victory…. Special prosecutor Jack Smith's dense, fact-filled filing combined with Judge Tanya Chutkan's decision to release it nearly unredacted coming on the heels of the vice-presidential debate between Gov. Tim Walz and Sen. JD Vance may be just the autumnal combination needed."

If Trump defeats Harris in November, Smith's election interference case wouldn't survive in 2025 — as the U.S. Department of Justice (DOJ) has a longstanding policy against prosecuting a sitting president. Moreover, Trump would likely nominate a loyalist U.S. attorney general to replace Democrat Merrick Garland, who appointed Smith.

But if Harris wins, Smith hopes to eventually bring the election case to trial.

Wu, in his op-ed, goes on to describe the types of voters who may be swayed by Trump's legal problems.

"Plenty of political pundits will argue that none of this is a true October surprise because it is unlikely to change any minds for diehard supporters of Trump," Wu explains. "But that's not the important audience for these new facts. Really, there are two important audiences. The first group is the several thousand voters in seven swing states that will be the deciding margin in who becomes the next president."

Wu adds, "The other audience — assuming Trump loses — will be 12 men and women who will someday be impaneled as a criminal jury in the District of Columbia to hold Donald J. Trump accountable."

Shan Wu's full op-ed for the Daily Beast is available at this link (subscription required).

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