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A closer look at the legal implications of the latest indictment against Trump

A MARTÍNEZ, HOST:

For a closer look about the legal implications of this latest indictment against former President Trump, we've called on former federal prosecutor Ankush Khardori. You just heard Adam Schiff say that Jack Smith was conservative in his charging decisions. Do you agree with that?

ANKUSH KHARDORI: It actually sounds accurate to me. I think the most significant departure between the January 6 committee's theory or the sort of theories that they offered and what we have in this indictment is that the indictment does not charge Trump with being aware of the violence on January 6, planning it or inciting the siege of the Capitol. And those were things that, you know, the committee had tried to develop evidence on. We all remember, you know, the Cassidy Hutchinson testimony on this point, which kind of shook everyone a bit. But that isn't in the indictment. I'm sure that is by design - a reflection, perhaps, of the proof that they were able to develop. But also I think Schiff - Congressman Schiff is correct that it probably reflects, as well, a conservative charging decision about the evidence that was actually available to prosecutors.

MARTÍNEZ: Could it possibly be a reflection of the politics involved around this?

KHARDORI: I mean, I'm sure that would be one element of it. But, I mean, this is an undeniably significant political event regardless. And I think if you read the indictment closely, the prosecutors actually seem to have gone out of their way to try to keep that suggestion out of the case. Certainly, it could have been a political issue, but it also would have considerably complicated the legal proceedings, because I don't think that the evidence that, you know, we got, at least from the committee, was particularly strong on that point.

MARTÍNEZ: So how strong does the case look overall to you?

KHARDORI: Well, look, I mean, the case, as Congressman Schiff accurately noted, largely retraces the January 6 committee's work, both in concept and in, you know, the underlying allegations. I think it's a robust document. I mean, it's hard to judge these things at this point because these are still just allegations subject to the proof at trial, if we get to a trial, and also Trump's defense. So I hate to judge these things just based on the basis of an indictment. But I will say, you know, setting aside sort of the questions of proof and law, this is a robust document that, to me, is justified on pretty much every conceivable political and pragmatic ground. I mean, this was a terrible affront to our country, to our democratic process. And I, for one, am very glad to see the Justice Department at last kind of approaching this event with the seriousness and rigor that it deserves.

MARTÍNEZ: You said if we get to a trial. You think there's a chance of that - of not getting to a trial?

KHARDORI: Oh, yeah. There is a chance of that. I mean, the average time between when a criminal case is filed in Washington, D.C., and it reaches a disposition is a year and a half in the usual case. That's according to the most recent statistics. Now, here, I'm sure the government is going to want a speedy trial, seek a speedy trial in part on the theory that the public needs to know the outcome of this trial before they potentially reelect this person. But it's definitely not a foregone conclusion. And, of course, Trump, as he's already been doing in Florida, his strategy is going to be to try to drag this out as long as possible in the hopes that he will actually win reelection and be able to shut the case down.

MARTÍNEZ: So even if it goes smoothly in terms of scheduling, we're still running right up until the election almost.

KHARDORI: Oh, absolutely. I think these are occurring on fully parallel tracks because even if a trial were actually to occur sometime next year and Trump were to be convicted at that trial, there are going to be post-trial proceedings, appeal proceedings that would take months, if not years. And he would almost certainly be allowed to be out on bail while those are still pending.

MARTÍNEZ: That's former federal prosecutor Ankush Khardori. He's a contributing editor for New York magazine and contributing writer for Politico. Thank you.

KHARDORI: Thanks for having me.

(SOUNDBITE OF OFF / SIDE'S "SKYE") Transcript provided by NPR, Copyright NPR.

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