Trump's 3rd indictment is a winnable case — but it won't be a slam dunk, former federal prosecutors say

• The special counsel Jack Smith has charged Trump with four counts related to the January 6 riot.
• Prosecutors will have their work cut out for them in explaining the case to a jury, experts said.

Former President Donald Trump is facing yet another criminal indictment after the special counsel Jack Smith on Tuesday charged him with four counts related to the January 6, 2021, Capitol riot and his efforts to overturn the 2020 presidential election.

The expansive conspiracy case involves a complex web of six unnamed coconspirators and copious witness testimony that could prove challenging to explain to a jury of civilians, two former federal prosecutors told Insider.

"I think this is very winnable, but it's not the slam dunk that the documents case is," Neama Rahmani, the president of West Coast Trial Lawyers and a former federal prosecutor, said, referring to one of Trump's other federal indictments.

Earlier this year, Trump pleaded not guilty to 37 federal counts related to his possession of classified government documents at his Mar-a-Lago resort in Florida. That federal indictment came just weeks after the former president pleaded not guilty to a 34-count criminal indictment brought by the Manhattan district attorney's office over hush-money payments Trump made to the porn star Stormy Daniels ahead of the 2016 election.

Federal prosecutors on Tuesday, meanwhile, charged Trump with conspiracy to defraud the US, conspiracy to impede the January 6, 2021, congressional proceedings, conspiracy against the right to vote and to have that vote counted, and obstruction of the certification of the electoral vote.

Trump has denied wrongdoing in all three cases.

Challenges ahead for prosecutors

Tuesday's indictment in the January 6 case relies heavily on the former president's public statements about the 2020 election with charges operating on the allegation that Trump knew he was lying when he attempted to remain in power, legal experts said.

"The question is not just whether the claims themselves were false, but whether the defendant knew they were false," Anna Cominsky, associate professor of law and director of the Criminal Defense Clinic at New York Law School, told Insider.

Trump could easily argue that he genuinely believed the election had been "stolen" and he was simply trying to see justice done, legal experts said. Prosecutors will thus have to present direct or circumstantial evidence that Trump knew his 2020 musings were false.

"If they fail to show any criminal intent, that could certainly undermine their case," said Sarah Krissoff, a former federal prosecutor with the Southern District of New York, and current defense attorney with the firm Cozen O'Connor.

But intent can also be inferred, Krissoff added. There's no possible way to know exactly what someone is thinking, so evidence of intent is often inferred by action, she said.

Smith and his prosecutors appear ready to present that evidence. Smith said Tuesday the Justice Department would seek a speedy trial in the matter.

Should the case go to trial, jurors will be faced with a deluge of testimony from very powerful people, Krissoff said. Trump's January 6 trial is likely to be more reliant on witness testimony than his classified documents case. In that case, prosecutors have surveillance footage, phone records, and even an audio recording of Trump discussing the classified documents in question to help bolster their case.

"I think the documents case is more accessible to a jury and more accessible to citizens of the United States," Krissoff said. "It's easier to understand what happened there."

A prosecutorial path forward

Smith, however, may already be laying the groundwork to get ahead of some of the challenges in the case, Rahmani said.

"This is an indictment that reads for the American people. It's meant for public consumption," Rahmani said. "Smith is trying to communicate to ordinary folks why this case is so important and why Trump's actions are so dangerous."

"I think it's very winnable for a couple of reasons," he added.

First and foremost, prosecutors are likely to find a friendly jury in Washington, DC, where the majority of residents are registered Democrats, Rahmani said.

"They have an amazing jury pool, where as in Florida, juries are unpredictable. You have no idea what a Florida jury will do," Rahmani said, speculating about a future classified documents trial.

The other factor playing in prosecutors' favor in the January 6 case is US District Judge Tanya S. Chutkan, an Obama appointee assigned to the case who has previously ruled against Trump and has a history of coming down hard on January 6 defendants.

Trump's tactic ahead of the 2024 presidential election will almost certainly be to delay his myriad legal troubles as long as he can with the hopes that he can win and wipe his slate clean, Rahmani said.

"These are federal charges," Rahmani said of the classified documents indictment and the January 6 case against Trump. "You're looking at years in prison for these types of offenses."