Trump Indictment Watch Brings Sense of Déjà Vu to DC Federal Courthouse

For years, Donald Trump’s name has long echoed around the E. Barrett Prettyman U.S. Courthouse, the Washington, D.C.-based federal judiciary building sandwiched between Capitol Hill and the White House. 

Soon, the former president expects to be here himself as a criminal defendant. 

It’s another one of those only-in-D.C. moments, and arguably one of the more fascinating subplots behind a defendant who just so happens to also be the former president of the United States.    

This is where Trump fought to have his tax returns shielded from Congress. This is where he fought to keep his White House counsel Don McGahn and myriad others from testifying against him. This is where Trump’s name came up countless times in criminal trials of convicted rioters who blamed him for inciting their actions on Jan. 6, 2021, even as the former president denied culpability for those attacks. It’s where his top allies like former White House strategist Steve Bannon and right-wing political operative Roger Stone met their reckoning in criminal trials over the lengths that they went to protect the former president.

It’s the same venue where U.S. Capitol police officers, Congress members and others terrorized during the Jan. 6 insurrection sued Trump for allegedly fomenting the violence on that day. In that litigation, some of the victims accused Trump of violating the Ku Klux Klan Act, a Reconstruction-era law designed to punish conspiracies to interfere with civil rights. 

And if Trump's own statements about receiving a target letter are accurate, it’s where Special Counsel Jack Smith may be eyeing a criminal analogue of that law to punish Trump’s multifaceted efforts to overturn his defeat in the 2020 presidential election. 

It’s also a place where Trump’s team isn’t feeling very optimistic about their chances given the city’s heavily Democratic background, with a little under 5.5 percent of its voters supporting the Republican’s 2020 presidential campaign.

“None,” a source familiar with the Trump team’s legal strategy told The Messenger when asked the prospects the former president would be acquitted in Washington D.C. “He could have done something that Mother Teresa would have approved of and he'll get convicted.”

From the Nixon Tapes to the Jan. 6 Docket

On Tuesday, dozens of reporters descended upon the court bracing for that possibility, congregating in a lobby pavilion near the main entrance with a clear view of the bridge leading to the grand jury room. The press monitored the entrances and exits of the attorneys, witnesses, or potential targets for signs of developments in that investigation — and perhaps, a long-awaited indictment.

The mere presence of TV crews camped outside the courthouse on Sunday sparked a flurry of speculation that charges were imminent, after photographs of the vans and trucks went viral on social media. At the time, preparing for major news to break from inside the building hardly required insider sourcing: Trump posted on his platform Truth Social days earlier that he expected to be indicted there imminently. 

A potential Trump criminal trial in Washington, D.C., has long been expected. In fact, until a late-minute shift in Smith’s work, the classified documents federal case brought in South Florida appeared likely to be headed for the nation’s capital, where Trump’s legal secretly battled a series of rulings waiving attorney-client privilege during the investigation under the crime-fraud exception. The Justice Department ultimately opted to file the case in the Southern District of Florida, whose jurisdiction covers Mar-a-Lago, the Trump residence and private club where the FBI found and seized the documents. 

At a recent pretrial hearing, Trump’s attorneys signaled plans to attack the Espionage Act charges on the grounds that prosecutors inappropriately investigated them in D.C., far away from that jurisdiction. That jurisdictional issue is unlikely to arise for any Jan. 6-related trial, which will be held in the proverbial shadow of the insurrection, just blocks from the U.S. Capitol and along the route that rioters took more than two-and-a-half years ago when marching from the White House. 

It’s not as if the federal court won’t be ready. Long before Trump’s presidency this is the building that’s been no stranger to historic proceedings involving former presidents, as the venue of Monica Lewinsky’s grand jury testimony related to the scandal that led to Bill Clinton’s impeachment and Watergate-era wrangling over the disclosure of the Nixon tapes.

‘Pawn in a Game’

People close to the Trump legal team have been hungry for information on what's what, even quizzing reporters about what they are hearing.

The team believes that an indictment could come Tuesday or Thursday, though only a grand jury can decide whether to take any action or when. They suspect more people will also testify before that panel in the coming weeks to answer more questions from Smith’s investigators, which has them bracing for even more charges beyond any that come as early as this week. It remains unclear who will be charged beyond Trump, if anyone.

Since Trump announced his receipt of a target letter last week, none of his allies have confirmed that they received one, too. Some legal analysts suspect that Smith wants to streamline any indictment, laser-focused on the former president, to increase the likelihood that Trump will stand trial on the charges before the 2024 election. 

Trump’s classified documents case in Miami could provide insight on what happens next if and when any indictment in Washington, D.C., is filed. There, Trump and his co-defendant Walt Nauta were brought to separate processing — colloquially known as “booking” — stations, strategically placed out of view from onlookers,  and those present were barred from taking photographs, The Messenger exclusively reported at the time. The process was said to have taken a matter of minutes. 

Once charged, Trump’s legal team is weighing a First Amendment defense in D.C., according to a source familiar with its strategy.

“The tenor of the charges, based on the target letter, is really centered on the criminalization of free speech,” the source, who gave legal advice to the former president, told The Messenger. “It's going to be a full attack on political decision-making, rather than core issues.”

Such an argument might face a speed bump from District of D.C. precedent, from related civil lawsuits accusing Trump of violating the Voting Rights Act, the KKK Act, and other statutes. Trump’s attorneys tried to swat away the litigation on free speech grounds, roundly rejected by U.S. District Judge Amit Mehta. 

In his ruling, Mehta found Trump plausibly engaged in incitement by urging his supporters to “walk down Pennsylvania Avenue” after telling them: “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” In combination, Trump’s remarks may have provoked  “imminent lawless action,” the heavy standard that the Supreme Court set for impermissible speech in the watershed 1969 case Brandenburg v. Ohio. 

In the wake of a recent New York Times report, Mehta’s ruling may take on renewed significance. Trump’s target letter cited a criminal analogue of the KKK Act, one of the same statutes at issue in that case. 

Mehta, a Barack Obama appointee, presided over significant Jan. 6 cases, including the seditious conspiracy trials of the Oath Keepers and the Proud Boys. Mehta’s independent streak, as a former defense attorney, occasionally frustrated federal prosecutors, who made the rare decision to appeal seditious conspiracy sentences that the Justice Department believes to be too light. 

In a much lower-profile case, Mehta suggested that Trump bore some responsibility for the actions of his followers by calling one convicted rioter a “pawn in a game.” 

Marc Caputo contributed to this report.