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Criminal Defense Attorney Discusses Pitfalls of Trump’s Cases

In 2024, Donald Trump will face as many as four criminal trials – while at the same time running for president, in a contest where he is very likely to be the Republican nominee. 

Donald Trump speaking to supporters at an immigration policy speech at the Phoenix Convention Center in Phoenix, Arizona. Image Credit by Gage Skidmore.

In 2024, Donald Trump will face as many as four criminal trials – while at the same time running for president, in a contest where he is very likely to be the Republican nominee. 

Several Ways This Can Play Out

How can this happen? Which trial poses the biggest threat to Trump? And can all those trials take place before election day next year? For some answers, 19FortyFive spoke with Keith B. Johnson, a criminal defense attorney and former prosecutor based in Georgia, one of the jurisdictions where the former president is facing charges. 

In recent weeks, four of Trump’s codefendants, three of them lawyers, have agreed to plead guilty and cooperate. 

19FortyFive: Tell me first of all, being in Georgia, about the RICO case against Trump. Is there anything specific to the law in Georgia that’s unique in terms of what he’s facing? I know that particular D.A., in the Atlanta area, has used the RICO laws a lot in other matters, which is not something you always see at the state level. So tell me a bit about how Georgia law pertains to this. 

Keith B. Johnson: So the RICO statute, or the anti-racketeering statute in Georgia, is pretty tough to get past because you only need an agreement to participate in a portion of the conspiracy to be held responsible for the entire conspiracy. So it’s like being one spoke in the wheel. So the importance of the guilty pleas by the codefendants is that they’re going to be able to testify because it’s part of their plea agreement that they have some kind of understanding or some kind of agreement with former President Trump to participate and put forth these false narratives that the election results were not trustworthy. 

So the racketing statute in Georgia is a minimum of five years, that’s why you’ve been seeing the five-year probation sentences for three out of the four folks who have already pled guilty. But it’s five years up to 20 years in prison, so it’s a very heavy statute, especially when you have so many people who have been charged in the same indictment. Everybody is not going to stick around and pay an attorney for a year-plus, or pay an attorney to go to a trial. I think there will be more individuals who will enter a plea prior to a jury trial. 

19FortyFive: One question I’ve heard asked a lot, about this case is, are these people good witnesses? I know that Sidney Powell has said some outlandish stuff on television, and I guess maybe in court as well. Can prosecutors trust these people on the stand? Or even the other people- are they more credible witnesses than she might be? 

KBJ: That’s a wonderful question because as a former prosecutor, I can tell you that you have to make deals with the devil. You have to essentially make the argument that, ‘ladies and gentlemen of the jury, Donald Trump picked these witnesses when he decided to engage in a criminal act with them. And one of the most important things as a defense attorney is going to be jury selection. Because this case is going to come down to credibility, and if I am President Trump’s attorney, I’m going to want to make this a political trial, not one based on, necessarily, facts, but get people who are like-minded on my jury who will see this as some kind of retribution for him challenging this election. 

To answer your question, these witnesses are attorneys. So they actually will have an ability to testify a little bit better than your average lay witness, because they’ll have a background in the law. So they’ll be able to outline the discussions they had with President Trump, which normally would be protected under the attorney-client privilege. 

19FortyFive: And there’s an exception to that in a case like this, I assume? 

KBJ: Yes, there is an exception for any type of criminal wrongdoing. But if they were not to testify, then they would have the right to remain silent. I would suspect that Donald Trump is going to say ‘I was relying on the advice of professionals, and any information that I had that was incorrect, I received with good faith.’ Obviously, they have entered guilty pleas of knowing criminal wrongdoing, so that’s where the legal issue is going to be fought over in court. 

19FortyFive: I’ve read some speculation that the Georgia case could end up getting delayed a bit. I know Trump has some other trials scheduled, and maybe the federal trials might take precedence. Do you see this trial happening even in the first half of 2024? 

KBJ: No, I don’t see it happening in the first half of 2024. If you look at the other high-profile case going on right now in Fulton County, involving the YSL, they’ve been picking a jury since January. And that case has several different defendants. It’s going to be difficult to find any juror who does not have an opinion on the former president, good or bad. So I do believe that the jury selection is going to be very meticulous and is going to take time, which bodes in the former president’s favor because what he wants is to have the political process play out. He wins the primaries, becomes the nominee, and now his argument becomes even greater, that this is a political issue, and not just one of a private citizen. 

19FortyFive: I saw that the Georgia legislature has made moves to try to either remove the Fulton County prosecutor or possibly even defund her office. Is there any chance that anything like this could happen, or is that a long shot? 

KBJ: That’s interesting because in Georgia there’s a supermajority in the House with the Republicans. I don’t think that goes anywhere. And to his credit, Gov. Brian Kemp has been pretty down the middle on these things. Obviously, he and Trump have their own history. But he was not willing to bring a special session in, to address the election results. So I don’t see it gaining any merit. I think there is a faction of the Republican base who would like to see something like that happen, but I also think there’s a faction that would like to move on from the former president to fresh faces. 

19FortyFive: So of the four cases that Trump is facing, the four criminal cases, which do you think he has the most to worry about? 

KBJ: I would say the case in Florida. The case in Florida with the documents, that’s pretty cut and dry. If I’m his attorney, I would say, though, that we found some documents in President Biden’s former office as well. But I think there might be testimony that there were affirmative steps taken to conceal these items, once it becomes known that they may have inadvertently left the White House. 

So I would say that that is a very difficult case. And the case in D.C. as well, because you have Sidney Powell, and you have Mr. Chesebro, who are unnamed, unindicted co-conspirators, so they have already entered guilty pleas in the Georgia case. And I would suspect that Special [Counsel] Jack Smith may have an interest in speaking to those individuals, And now you have a transcript, from Atlanta, where they have admitted to having a role in the same subject matter that will be at trial in the D.C. circuit. So that is also a concerning case for the former president. 

19FortyFive: So if you were going to make an argument, or his attorney would make an argument- ‘what about many documents- what about that guy, look what Biden did’” I know that’s the type of argument one might make in a television interview, or maybe on a debate stage. But is that the kind of argument that works in court? 

KBJ: Once again, it goes back to the jury, and who you have on a jury, and what they are more prone to believe, and whether they believe the former president is being treated unfairly, when you have someone who is similarly situated who also, there might be some smoke around him, maybe taking some documents while vice president that never should have left the grounds. So it would have to be a more nuanced argument- he’s got staffers, he’s got people who are responsible for certain things, however, I do believe you will have a faction of the voting public who are serving as juries, who might find this is much ado about nothing. You got the documents back, there are no national secrets that have been revealed, and all’s well that ends well. And that’s what he has to hope for. 

19FortyFive: You mention the Biden documents, you don’t hear much about that from day to day, and I know there is a special counsel. There was a report a few weeks ago that Biden had sat down with the prosecutor, or possibly with his team. How do you think that ends? Do you think the president has anything to worry about with that? When they talk about impeaching him, that doesn’t seem to be the main thing they’re focusing on. 

KBJ: I would say that the main difference is that President Biden said, almost immediately, ‘I’m sorry, I didn’t know these documents were there, come in and search, whatever you want. Ask me, I will have an answer for you.’ The difference, obviously, is President Trump was a little bit more defiant, and I believe that the evidence will be, or the government will try put forth evidence that he directed individuals to destroy evidence, or to further conceal. 

I think reasonable people would agree that sometimes things happen. He’s the president, he can’t know everything, however when it’s brought to his attention, now at that moment in time, what is your mind state, and what are you doing to rectify the situation? And that would be the biggest distinction, that if I’m the government, I would make. And if I’m his attorney, I might say, he’s got a different personality, he may question things a little bit more, but it still doesn’t mean that he had any criminal intent. He may have been wildly mistaken, but not criminal in nature. 

Author Expertise and Experience:

Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Stephen has authored thousands of articles over the years that focus on politics, technology, and the economy for over a decade. Follow him on X (formerly Twitter) at @StephenSilver, and subscribe to his Substack newsletter.

Written By

Stephen Silver is a journalist, essayist, and film critic, who is also a contributor to Philly Voice, Philadelphia Weekly, the Jewish Telegraphic Agency, Living Life Fearless, Backstage magazine, Broad Street Review, and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.