The speed and intensity with which special counsel Jack Smith and his team have been moving shows they can sprint, and we’ll soon learn if they can go the distance. Attorney General Merrick Garland appointed Smith on Nov. 18 to lead two delayed, seemingly sclerotic, investigations of former President Donald Trump. He has obtained indictments in the classified documents case, and based on Trump’s reported receipt of a target letter regarding Smith’s investigation into the aftermath of the 2020 election, charges are most likely imminent in that case.
Based on Trump’s receipt of a target letter regarding Smith’s investigation into the aftermath of the 2020 election, charges are most likely imminent.
If you’ve become numb to the notion of a former U.S. president under investigation and multiple indictments, you would have good reason. In addition to the federal indictment accusing Trump of 37 counts on seven charges, including false statements, conspiracy to obstruct and willful retention of national defense information, Trump has also been indicted by the Manhattan district attorney on charges of falsifying business records in making hush money payments. He's also facing potential election-related charges in Fulton County, Georgia, been found liable in a sexual assault and defamation case, and faces a civil trial against his organization by the New York attorney general.
But the federal case involving the 2020 election is different. A target letter to a former president indicating he’s facing indictment — possibly for trying to interfere with the peaceful transition of power — is not only unprecedented, but also suggests we had a president who posed an existential threat to our democracy.
We shouldn’t take news of this target letter lightly, and neither should Trump and his nascent, disorganized legal team. While Trump, Fox News, House Speaker Kevin McCarthy and Rep. Marjorie Taylor Greene, R-Ga., (who responded to news of the target letter by calling Jack Smith a “weak little b----”) are claiming Smith’s election case is frivolous, weak and a desperate attempt to interfere with Trump’s 2024 campaign, the reality and gravity of federal prosecutions are quite different.
The U.S. government wins an overwhelming percentage of its cases. An analysis by Pew Research of available 2022 data shows a remarkable track record of success for federal prosecutors and a miserable outcome for defendants. In fiscal year 2022, only 0.4% of federal defendants chose to go to trial and were acquitted. In that year, 71,954 people were criminally charged by the feds, and only 290 of those went to trial and won. Another 1,379 defendants decided to give a trial a shot and were convicted. That means almost everyone else essentially gave up. They pleaded guilty.
That’s not to imply that Trump is going to throw up his hands and plead guilty. In fact, he seems to relish and benefit from taking on the government. The presumption of innocence is his, and it’s his right to vigorously defend himself. Yet, Trump and the rest of us need to understand that federal prosecutors play to win. They would rather dismiss a case, or not bring charges at all, than lose. Their track record is testament to a winning combination of the withering weight of evidence the FBI and other investigators can generate using their entire panoply of tools and techniques: from physical and electronic surveillance, informant development, undercover agents, cooperating witnesses and reams of paper and digital evidence that routinely proves cases beyond a reasonable doubt. Then, a talented cadre of America’s best prosecutors bring that evidence to court and present it as if America’s security depends on it — because it so often does.
Federal prosecutors play to win. They would rather dismiss a case, or not bring charges at all, than lose.
Smith, unlike an elected local prosecutor who may feel pressure from voters, would not bring charges against a former president hoping that maybe something might stick. That’s not how this works. If he’s issued Trump a target letter, then we can surmise that Smith has his case, he’s got his evidence, and, unless Trump can convince him otherwise, Smith will indict Trump.
As much as the public may want to discuss the unprecedented nature of this case, the politics, alleged political bias, egos and political pressure, those are not the relevant details. Despite how Trump may view himself, he isn’t much different than those 72,000 defendants charged by DOJ last year. He’s another defendant, likely to soon be indicted by defenders of justice who, as a general rule, only bring the cases they are absolutely confident they can win.
CORRECTION: (July 19, 2023, 6:15 p.m. ET): A previous version of this article mischaracterized a percentage as it applies to federal defendants who are acquitted. The 0.4% acquittal rate is for those who were charged, not those who chose to go to trial. And the statistic is from fiscal year 2022, not 2022.
